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I  J  ii'ikic  \jll'« ' 


EOSOOE'S  DIGEST 


LAW  OF  EVIDENCE 


IN 


CRIMi:tTAL  CASES. 


By  HORACE  SMITH,  Esq.,  B.A., 

OF  THE  INNER  TEMPLE   AND   MIDLAND   CIRCUIT,   BARRISTER-AT-LAW, 

RECORDER  OF   LINCOLN, 

AUTHOR  OF  "  THE  LAW  OF  NEGLIGENCE ;"  EDITOR  OF  "ADDISON  ON  CONTRACTS,"  ETC. 


FROM  THE  TENTH  LONDON  EDITION. 
WITH   NOTES   AND   REFERENCES   TO  AMERICAN  CASES 

By  Hon.  GEORGE  SHARSWOOD,  LL.D., 

AND   ADDITIONAL    NOTES 

By  FRANCIS  LINCOLN  WAYLAND,  Esq., 

or  THE   PHILADELPHIA  BAB. 


IN  TWO  VOLUMES. 
Vol.  II. 


PHILADELPHIA: 

T.   &  J.  W.   JOHNSON  &  CO., 

No.  535  Chestnut  Street. 
1888. 


Entered,  according  to  the  Act  of  Congress,  in  the  year  1841,  by 

T.  &  J.  W.  Johnson, 

In  the  Clerk's  Ollice  of  the  District  Court  of  the  United  States  for  the  Eastern  District  of 

Pennsylvania. 


Entered,  according  to  the  Act  of  Congress,  in  the  year  1846,  by 

T.  &  J.  W.  Johnson, 

In  the  Clerk's  Office  of  the  District  Court  of  the  United  States  for  the  Eastern  District  of 

Pennsylvania. 


Entered,  according  to  the  Act  of  Congress,  in  the  year  1852,  by 
T.  &  J.  W.  Johnson, 

In  the  Clerk's  Office  of  the  District  Court  of  the  United  States  for  the  Eastern  District  of 

Pennsylvania. 


Entered,  according  to  the  Act  of  Congress,  in  the  year  1854,  by 

T.  &  J.  W.  Johnson  &  Co., 

In  the  Clerk's  Office  of  the  District  Court  of  the  United  States  for  the  Eastern  District  of 

Pennsylvania. 


Entered,  according  to  the  Act  of  Congress,  in  the  year  1866,  by 

T.  &  J.  W.  Johnson  &  Co., 

In  the  Clerk's  Office  of  the  District  Court  of  the  United  States  for  the  Eastern  District  of 

Pennsylvania. 


Entered,  according  to  the  Act  of  Congress,  in  the  year  1874,  by 

T.  &  J.  W.  Johnson  &  Co., 

In  the  Office  of  the  Librarian  of  Congress  at  Washington. 


Entered,  according  to  the  Act  of  Congress,  in  the  year  1888,  by 

T.  &  J.  W.  Johnson  &  Co., 

In  the  Office  of  the  Librarian  of  Congress  at  Washington, 


T 


EXPLOSIVES.  (531 


♦EXPLOSIVES.  [♦484 

TAGK 

Blowing  up  dwelling-house,  any  person  being  therein       .        .        ,  484 

building  with  intent  to  murder  ....  484 

Placing  gunpowder,  etc.,  near  any  building  witli  intent  to  destroy  .  484 
Placing  gunpowder,  etc.,  near  any  ship  or  vessel  with  intent  to 

destroy  485 

Placing  gxinpowder,  etc.,  near  any  ship  or  vessel  with  intent  to  do 

bodily  injury 485 

Injuries  to  persons  by  gunpowder,  etc 485 

Sending  or  throwing  explosive  or  dangerous  substance      .        .        .  485 

Making  or  having  possession  of  gunpowder,  etc.     ....  486 

Proof  of  malice 486 

Persons  endangered  within  sect.  9  of  24  &  25  Vict.  c.  97        .        ,  486 

Meaning  of  explosive  substance  ..,,,,..  486 

Explosive  Substances  Act,  1875        .        , 486 

Explosive  Substances  Act,  1883     .        ,        .        .  ...  487 

Injuries  by  persons  in  possession .  488 

Form  of  indictment 488 

Blowing  up  dwelling-house,  any  person  being  therein.  By  the 
24  &  25  Vict.  c.  97,  s.  9,  "  whosoever  shall  unlawfully  and  maliciously, 
by  the  explosion  of  gunpowder  or  other  explosive  substance,  destroy, 
throw  down  or  damage  the  whole  or  any  part  of  any  dwelling-house, 
any  person  being  therein,  or  of  any  building  whereby  the  life  of  any 
person  shall  be  endangered,  shall  be  guilty  of  felony,  and  being  con- 
victed thereof,  shall  be  liable,  at  the  discretion  of  the  court,  to  be 
kept  in  penal  servitude  for  life,  or  for  any  term  not  less  than  three 
[now  five]  years,  or  to  be  imprisoned  for  any  term  not  exceeding  two 
years,  with  or  without  hard  labor,  and  with  or  without  solitary  con- 
finement, and  if  a  male  under  the  age  of  sixteen  years  with  or  with- 
out whipping." 

Blowing  up  building  with  intent  to  murder.     By  the  24  &  25 

Yict.  c.  100,  s.  12,  "whosoever,  by  the  explosion  of  gunpowder  or 
other  explosive  substance,  shall  destroy  or  damage  any  building 
with  intent  to  commit  murder,  shall  be  guilty  of  felony,  and 
being  convicted  thereof,  shall  be  liable,  at  the  discretion  of  the  court, 
to  be  kept  in  penal  servitude  for  life,  or  for  any  term  not  less  than 
three  [now  five]  years,  or  to  be  imprisoned  for  any  terni  not 
exceeding  two  years,  with  or  without  hard  labor,  and  with  or  without 
solitary  confinement." 

Placing  gunpowder,  etc.,  near  any  building  with  intent  to  de- 
stroy. By  the  24  &  25  Vict.  c.  97,  s.  10,  "  whosoever  shall  unlawfully 
and  maliciously  place,  or  throw  in,  into,  upon,  under,  against,^  or  near 
any  building  any  gunpowder  or  other  explosive  substance,  with  intent  to 
♦destroy  or'damage  any  building,  or  any  engine,  machinery,  r*^^^ 
working  tools,  fixtures,  goods,  or  chattels,  shall,  ^vhether  or 


^3oS0^ 


632  EXPLOSIVES. 

not  any  explosion  take  place,  and  wlietlier  or  not  any  damage  be  caused, 
be  guilty  of  felony,  and  being  convicted  thereof  shall  be  liable,  at  the 
discretion  of  the  court,  to  be  kept  in  penal  servitude  for  any  term  not 
exceeding  fourteen  and  not  less  than  three  [now  five]  years,  or  to  be 
imprisoned  for  any  term  not  exceeding  two  years,  with  or  without 
hard  labor,  and  with  or  without  solitary  confinement,  and  if  a  male 
under  the  age  of  sixteen  years  with  or  without  whipping." 

Placing  gunpowder  near  any  ship  or  vessel  with  intent  to  de- 
stroy it.  J>y  the  24  &  25  Vict.  c.  97,  s.  45,  "  whosoever  shall  un- 
lawfully and  maliciously  place  or  throw  in,  into,  upon,  against,  or  near 
any  ship  or  vessel  any  gunpowder  or  other  explosive  substance,  with 
intent  to  destroy  or  damage  any  ship  or  vessel,  or  any  machinery, 
-working  tools,  goods,  or  chattels,  shall,  whether  or  not  any  explosion 
take  place,  and  whether  or  not  any  injury  be  effected,  be  guilty  of 
felony,  and  being  convicted  thereof,  shall  be  liable,  at  the  discretion  of 
the  court,  to  be  kept  in  penal  servitude  for  any  term  not  exceeding 
fourteen  and  not  less  than  three  [now  five]  years,  or  to  be  imprisoned 
for  any  term  not  exceeding  two  years,  with  or  Avithout  hard  labor,  and 
with  or  without  solitary  confinement,  and  if  a  male  under  tlie  age  of 
sixteen  years  with  or  without  whipping." 

Placing  gunpowder  near  any  ship  or  vessel  with  intent  to  do 
any  bodily  injury.  By  the  24  &  25  Vict.  c.  100,  s.  30,  "whosoever 
shall  unlawfully  and  maliciously  place  or  throw  in,  into,  upon,  against, 
or  near  any  building,  ship,  or  vessel  any  gunpowder  or  other  explosive 
substance  with  intent  to  do  any  bodily  injury  to  any  person,  shall, 
whether  or  not  any  explosion  take  place,  and  whether  or  not  any  bodily 
injury  be  effected,  be  guilty  of  felony,  and  being  convicted  thereof 
shall  be  liable,  at  the  discretion  of  the  court,  to  be  kept  in  penal  ser- 
vitude for  any  term  not  exceeding  fourteen  years  and  not  less  than 
three  [now  five]  years,  or  to  be  imprisoned  for  any  term  not  exceeding 
two  years,  with  or  without  hard  labor,  and  with  or  without  solitaiy 
confinement,  and  if  a  male  under  the  age  of  sixteen  years  with  or  with- 
out whipping." 

Injuries  to  person  by  gunpowder,  etc.  By  the  24  &  25  Vict.  c. 
100,  s.  28,  "whosoever  shall  unlawfully  and  maliciously,  by  the  ex- 
plosion of  gunpowder  or  other  explosive  substance,  burn,  maim,  dis- 
figure, disable,  or  do  any  grievous  bodily  harm  to  any  person,  shall  be 
guilty  of  felony,  and  being  convicted  thereof  shall  be  liable  at  the 
discretion  of  the  court,  to  be  kept  in  penal  servitude  for  life  or  for  any 
term  not  less  than  three  [now  five]  years,  or  to  be  imprisoned  for  any 
term  not  exceeding  two  years,  with  or  without  hard  labor,  and  with  or 
without  solitary  confinement,  and  if  a  male  under  the  age  of  sixteen 
years  with  or  without  whipping." 

Sending  or  throwing  explosive  or  dangerous  substances.  By  s. 
29,  "whosoever  shall  unlawfully  and  maliciously  cause  any  gunpowder 


EXPLOSIVES.  g33 

or  other  explosive  substance  to  explode,  or  send  or  deliver  to  or  cause 
to  be  taken  or  received  by  any  person  any  explosive  substance,  or 
any  other  dangerous  or  noxious  thing,  or  put  or  lay  at  any  place 
or  cast  or  throw  at  or  upon,  or  otherwise  apply  to  any  person  any 
corrosive  fluid,  or  any  destructive  or  explosive  substance,  Avith   intent 
*in  any  of  the  cases  aforesaid  to  burn,  maim,  disfigure,  or  dis- 
able any  person,  or  to  do  some  grievous   bodily  harm  to  any   L 
pei-son,  shall,  whether  any  bodily  injury  be  etfected  or  not,  be  guilty  of 
felony,  and  being  convicted  thereof  shall  be  liable,  at  the  discretion  of 
the  court,  to  be  kept  in  penal  servitude  for  life  or  for  any  term  not  less 
than  three  [now  five]  years,  or  to  be  imprisoned  for  any  term  not  exceed- 
ing two  years,  with  or  without  hard  labor,  and  with  or  without  solitary 
confinement,  and  if  a  male  under  the  age  of  sixteen  years  with  or 
without  whipping." 

Making  or  having  possession  of  gunpowder,  etc.     By  the  24  & 

25  Vict.  c.  97,  s.  54,  "  whosoever  shall  make  or  manufacture,  or  know- 
ingly have  in  his  possession  any  gunpowder  or  other  explosive  sub- 
stance, or  any  dangerous  or  noxious  thing,  or  any  machine,  engine, 
instrument,  or  thing,  with  intent  thereby  or  by  means  thereof  to  com- 
mit, or  for  the  purpose  of  enabling  any  other  person  to  commit,  any 
of  the  felonies  in  this  act  mentioned,  shall  be  guilty  of  a  misde- 
meanor, and  being  convicted  thereof  shall  be  liable,  at  the  discretion 
of  the  court,  to  be  imprisoned  for  any  term  not  exceeding  two  years, 
with  or  without  hard  labor,  and  with  or  without  solitary  confinement, 
and  if  a  male  under  the  age  of  sixteen  years  with  or  without  whip- 
ping." 

A  similar  provision  is  contained  in  the  24  &  25  Vict.  c.  100,  s.  64. 

See  as  to  keeping  large  quantities  of  gunpowder  or  other  explosive 
substances,  post.  tit.  "  Nuisances. 

Proof  of  malice.  As  to  malice  against  the  owner  of  the  property 
being  unnecessary,  see  24  &  25  Vict.  c.  97,  s.  58,  supra,  p.  289. 

Persons  endangered  within  sect.  9  of  24  &  25  Vict.  c.  97.  It 
would  seem  from  the  report  of  a  case  in  Cox's  Crown  Cases,  that  the 
endangering  of  life  to  be  within  24  &  25  Vict.  c.  97,  s.  9,  must  result 
from  the  damage  done  to  the  building  particularized  in  the  indictment, 
and  the  statute  includes  the  case  of  persons  outside  the  building  whose 
lives  are  imperilled  by  anything  proceeding  from  the  damaged  build- 
ing. R.  V.  McGrath,'  14  Cox,  C.  C.  598.  Endanirering  of  Jife  by 
damage  done  to  other  buildings  not  mentioned  in  the  indictment 
which  are  injured  by  the  explosion,  is  not  evidence  of  the  endan- 
gering of  life  alleged  in  the  indictment,  but  evidence  of  the  damage 
done  to  them  is  admissible  for  the  purpose  of  showing  the  character 
of  the  explosion  damaging  the  building  mentioned  in  the  indictment. 

Explosive  substance.  It  must  be  shown  under  section  10  that  the 
substance  thrown  was  in  a  condition  to  explode  at  the  time  it  was  throAvn. 


634  EXPLOSIVES. 

The  throwing  of  a  bottle  of  gnnpoAvdor  alone  which  by  itself  would 
not  expl(xle,  would  not  be  within  the  section.  E,.  v.  Sheppard,  11  Cox, 
C.  C.  302.     Fer  Kelly,  C.  B. 

Explosive  Substances  Act,  1875.  The  Explosive  Substances  A  ct, 
1875,  being  an  act  to  amend  the  law  with  respect  to  manufacturing, 
keeping,  selling,  carrying  and  importing  gunpowder,  nitro-glycerine, 
and  other  explosive  substances,  38  &  39  Vict.  c.  17,  post,  tit.  "  Nuisance," 
made  various  offences  punishable  by  fine  or  imprisonment ;  by  s.  91 
such  offences  may  be  prosecuted  by  indictment ;  by  s.  92  a  person 
accused  of  any  offence  the  penalty  for  which  exceeds  100^.  may  object 
^^  „-|  *to  be  tried  by  a  court  of  summary  jurisdiction,  and  the  oiieuce 
-I   may  be  tried  on  indictment  accordingly. 

Explosive  Substances  Act,  1883.  In  consequence  of  many  das- 
tardly threats  and  attempts  to  blow  up  and  destroy  buildings  and 
other  property  in  the  United  Kingdom,  by  means  of  dynamite  and 
other  explosives,  and  also  in  consequence  of  the  inadequate  provisions 
of  either  the  common  or  statute  law  to  meet  the  mischief  to  be  appre- 
hended, the  Explosive  Substances  Act,  1883  (46  Vict.  c.  3),  was  passed. 
In  the  case  of  R.  v.  Gallagher,  15  Cox,  C.  C.  291,  the  prisoners  had 
threatened  to  blow  up  the  House  of  Commons  and  Scotland  Yard. 
They  were  charged  under  the  11  &  12  Vict.  c.  12,  s.  3,  with  treason- 
felony,  that  is,  with  intending  to  depose  the  Queen,  and  to  levy  war 
against  tlie  Queen  in  order  to  compel  her  to  change  her  counsels,  and 
in  order  to  overawe  the  Houses  of  Parliament.  Four  of  the  prisoners 
were  found  guilty  and  sentenced  to  penal  servitude  for  life.  It 
was,  however,  easy  to  be  seen  that  great  mischief  might  be  done  or 
attempted  by  wicked  persons  possessing  themselves  of,  or  dealing  with, 
explosives  for  the  purpose  of  terrifying  or  injuring  others,  and  that 
such  wicked  persons  might  not  by  their  acts  have  brought  themselves 
within  the  treason-felony  statute,  or  within  any  other  criminal  statute 
providing  an  adequate  punishment  for  such  grave  offences.  The  legis- 
lature therefore  passed  a  measure  which  is  of  a  ■\vide  and  far-reaching 
character,  and  provides  for  the  infliction  of  very  severe  punishments. 

By  sect.  2  of  the  Explosive  Substances  Act,  1883  (46  Vict.  c.  3), 
Any  person  who  unlawfully  and  maliciously  causes  by  any  explosive 
substance  an  explosion  of  a  nature  likely  to  endanger  life  or  to  cause 
serious  injury  to  property,  shall,  whether  any  injury  to  person  or 
property  has  been  actually  caused  or  not,  be  guilty  of  felony,  and  on 
conviction  shall  be  liable  to  penal  servitude  for  life,  or  for  any  less 
term  (not  less  than  the  minimum  term  allowed  by  law)  or  to  imprison- 
ment, with  or  without  hard  labor,  for  a  term  not  exceeding  two  years. 

Sect.  3.  Any  person  who  within  or  (being  a  subject  of  Her  Majesty) 
without  Her  Majesty's  dominions  unlawfully  and  maliciously — 

(a)  Does  any  act  with  intent  to  cause  by  an  explosive  substance  or 
conspires  to  cause  by  an  explosive  substance,  an  explosion  in  the  United 
Kingdom  of  a  nature  likely  to  endanger  life  or  to  cause  serious  injury 
to  property,  or 


EXPLOSIVES.  (335 

_  (b)  Makes  or  has  in  his  possession,  or  under  his  control,  any  explo- 
sive substance  with  intent  by  means  thereof  to  endanger  hfe,  or  cause 
serious  injury  to  property  in  the  United  Kingdom,  or  to  enable  any 
other  persons  by  means  thereof  to  endanger  life  or  cause  serious  injury 
to  property  in  the  United  Kingdom,  shall,  Avhether  any  explosion  does 
or  not  take  place,  and  whether  any  injury  to  person  or  property  has 
been  actually  caused  or  not,  be  guilty  of  felony,  and  on  conviction 
shall  be  liable  to  penal  servitude  for  a  term  not  exceeding  twenty 
years,  or  to  imprisonment  with  or  without  hard  labor  for  a  term  not 
exceeding  two  years  and  the  explosive  substance  shall  be  forfeited. 

Sect.  4.  (1)  Any  person  who  makes,  or  knowingly  has  in  his  pos- 
session or  under  his  control,  any  explosive  substance,  under  such  cir- 
cumstances as  to  give  rise  to  a  reasonable  suspicion  that  he  is  not 
making  it  or  does  not  have  it  in  his  possession,  or  under  his  control, 
*for  a  lawful  object,  shall,  unless  he  can  show  that  he  made  it  r*4oq 
or  had  it  in  his  possession  or  under  his  control,  for  a  lawful  L  '*^'^ 
object,  be  guilty  of  felony,  and,  on  conviction,  shall  be  liable  to  penal 
servitude  for  a  term  not  exceeding  fourteen  years,  or  to  imprison- 
ment for  a  term  not  exceeding  two  years  with  or  without  hard  labor, 
and  the  explosive  substance  shall  be  forfeited. 

(2)  In  any  proceeding  against  any  person  for  a  crime  under  this 
section,  such  person  ,and  his  wife,  or  husband,  as  the  case  may  be, 
may,  if  such  person  thinks  fit,  be  called,  sworn,  examined,  and  cross- 
examined  as  an  ordinary  witness  in  the  case. 

Sect.  5.  Any  person  who  within  or  (being  a  subject  of  Her  Majesty) 
without  Her  Majesty's  dominions,  by  the  supply  of  or  solicitation  for 
money,  the  providing  of  premises,  the  supply  of  materials,  or  in  any 
manner  whatsoever  procures,  counsels,  aids,  abets,  or  is  accessory  to, 
the  commission  of  any  crime  under  this  Act,  shall  be  guilty  of  felony, 
and  shall  be  liable  to  be  tried  and  punished  for  that  crime  as  if  he 
had  been  guilty  as  a  principal. 

By  sect.  6  provision  is  made  for  inquiry  by  order  of  the  Attorney- 
General,  into  oifences  under  this  Act  before  justices,  and  for  the  ap- 
prehension of  absconding  witnesses. 

By  sect.  7,  (1)  If  any  person  is  charged  before  a  justice  with  any 
crime  under  this  Act,  no  further  proceeding  shall  be  taken  against 
such  person  without  the  consent  of  the  Attorney-General,  except  such 
as  the  justice  may  think  necessary  by  remand,  or  otherwise,  to  secure 
the  safe  custody  of  such  person. 

(2)  In  framing  an  indictment,  the  same  criminal  act  maybe  charged 
in  different  counts  as  constituting  different  crimes  under  this  Act  and 
upon  the  trial  of  any  such  indictment  the  prosecutor  shall  not  be  put 
to  his  election  as  to  the  count  on  which  he  must  proceed. 

(3)  For  all  purposes  of  and  incidental  to  arrest,  trial,  and  punish- 
ment, a  crime  for  which  a  person  is  liable  to  be  punished  under  this 
Act,  when  committed  out  of  the  United  Kingdom,  shall  be  deemed  to 
have  been  committed  in  the  place  in  which  such  person  is  apprehended 
or  is  in  custody. 

(4)  This  Act  shall  not  exempt  any  person  from  any  indictment  or 


636  EXPLOSIVES. 

proceeding  for  a  crime  or  offence  wliich  is  punishable  at  common  law, 
or  by  any  jV.ct  of  Parliament  other  than  this  Act,  but  no  person  shall 
be  punished  tAvice  for  the  same  criminal  act. 

Sect.  8  provides  for  search  and  seizure  of  explosives. 

Bv  sect.  9.  In  this  Act,  unless  the  context  otherwise  requires — The 
expression  "explosive  substance,"  shall  be  deemed  to  include  any 
materials  for  making  any  explosive  substance;  also  any  apparatus, 
machine,  implement,  or  materials  used,  or  intended  to  be  used,  or 
adapted  for  causing,  or  aiding  in  causing,  any  explosion  in  or  with 
any  explosive  substance ;  also  any  part  of  any  such  apparatus,  machine 
or  implement. 

Injuries  by  persons  in  possession  of  property  injured.     As  to 

this,  see  24  &  25  Vict.  c.  97,  s.  59,  supra,  p.  289. 

Form  of  indictment.  See  24  &  25  Vict.  c.  97,  s.  60,  supra,  p.  289, 
and  sect.  7  (2)  of  the  Explosive  Substances  Act,  1883,  supra.   ^ 


FALSE  COPIES   OF   RULES   OF  TRADE  UNIONS.  637 


*FALSE  COPIES  OF  RULES  OF  TRADE  UNIONS.  [*489 

By  the  Trade  Union  Act,  1871  (34  &  35  Vict.  c.  31)  sect.  18,  it  is 
enacted  that  "  if  any  person  with  intent  to  mislead  or  defraud  gives  to 
any  member  of  a  trade  union  registered  under  this  act,  or  to  any  per- 
son intending  or  applying  to  become  a  member  of  such  trade  union  a 
copy  of  any  rules  or  of  any  alterations  or  amendments  of  the  same 
other  than  those  respectively  which  exist  for  the  time  being,  on  the 
pretence  that  the  same  are  the  existing  rules  of  such  trade  union ;  or  if 
any  person  with  the  intent  aforesaid  gives  a  copy  of  any  rules  to  any 
person  on  the  pretence  that  such  rules  are  the  rules  of  a  trade  union 
registered  under  this  act  which  is  not  so  registered,  every  person  so 
offending  shall  be  guilty  of  a  misdemeanor." 

By  sect.  19,  sub-sect.  2,  the  description  of  any  offence  under  this 
Act  in  the  words  of  the  Act  shall  be  sufficient  in  law.  A  definition 
of  Trade  Union  is  given  in  the  39  &  40  Vict.  c.  22,  s.  16. 


638  FALSE   DECLARATIONS. 


*490] 


*FALSE  DECLARATIONS. 


PAGE 

At  elections — parliamentary        .        .        .        .        .        «        .        •  490 

municipal    .        .        .        • 490 

Before  magistrates ,        .        ,        .  490 

On  registration  of  births,  deaths,  and  marriages    ....  491 

Customs 492 

Bankruptcy .        .        .         .  492 

In  other  cases 492 

At  elections — parliamentary.  By  the  Reform  Act,  2  &  3  Will. 
4,  c.  45,  s.  58,  three  questions  were  allowed  to  be  put  to  the  voter  at 
the  poll,  to  be  answered  by  him  on  oath  ;  but  bv  the  6  &  7  Vict.  c. 
18,  ss.  81,  82,  and  see  the  Ballot  Act  (35  &  36  Vict.  c.  33),  s.  10, 
these  were  reduced  to  two.  See  Rogers  on  Elections,  chap.  Proceed- 
ings at  the  Elections.  Sect,  81  of  the  6  &  7  Vict.  c.  18  euacts,  that 
"if  any  person  shall  wilfully  make  a  false  answer  to  either  of  the 
questions,  he  shall  be  deemed  guilty  of  a  misdemeanor,  and  shall  and 
may  be  indicted  and  punished  accordingly." 

Upon  an  indictment  under  this  statute  the  word  "  wilfully  "  should 
be  construed  in  the  same  way  as  in  an  indictment  for  perjury,  and  be 
supported  by  the  same  sort  of  evidence.  Per  Patteson,  J.,  in  R.  v. 
Ellis,  Car.  &  M.  564,  41  E.  C.  L.  For  other  cases  upon  the  2  &  3 
Will.  4,  c.  45,  s.  58,  see  R.  v.  Bowler,  Car.  &  M.  559,  41  E.  C.  L.; 
R.  V.  Spalding,  Car.  &  M.  568,  41  E.  C.  L. ;  and  R.  v.  Lacy,  Car.  & 
M.  511,  41  E.  C.  L.  See  also  R.  v.  Bent,  1  Den.  C.  C.  R.  157, 
infra. 

By  the  Corrupt  Practices  Prevention  Act,  1883  (46  &  47  Vict.  c. 
51),  s.  33  (7),  candidates  or  election  agents  knowingly  making  decla- 
rations required  by  that  section  falsely  are  indictable,  and  are  also 
guilty  of  a  "  corrupt  practice  "  within  the  meaning  of  the  Act.  As  to 
the  procedure  and  punishment,  see  ante,  tit.  "  Bribery." 

At  elections — municipal.  The  Municipal  Corporation  Act,  5  &  6 
Will.  4,  c.  76,  s.  34  (now  re])caled),  amended  by  the  35  &  36  Vict.  c. 
33,  4th  schedule,  provided  likewise  for  questions  being  put  to  persons 
voting  at  municipal  elections,  and  in  the  same  words  as  those  used  in 
the  6  &  7  Vict.  c.  18,  make  it  a  misdemeanor  for  a  burgess  wilfully  to 
make  a  false  answer  to  any  of  these  questions.  It  was  held,  that  an 
indictment  charging  that  "  the  defendant  falsely  and  fraudulently 
answered  "  was  bad  for  omitting  the  word  "  wilfully."  R.  v.  Bent,  1 
Den.  C.  C.  R._  157.  See  now  45  &  46  Vict.  c.  50,  s.  59.  Falsely  and 
fraudulently  signing  a  declaration  under  the  Parliamentary  and  Muni- 
cipal Registration  Act,  1878  (41  &  42  Vict.  c.  26),  is  made  a  misde- 
meanor by  sect.  25  of  that  Act.  For  other  offences  at  elections,  see 
ante,  tit.  "  Elections." 


FALSE   DECLARATIONS.  639 

Before  magistrates.  The  5  &  6  Will.  4,  c.  62,  s.  18,  after  rccitino- 
"  whereas  it  may  be  necessary  and  proper  in  many  cases  not  herein 
specified  to  require  confirmation  of  written  instruments  or  alleo-ations 
or  proof  of  debts  or  of  the  execution  of  deeds  or  otlier  Diatters  " 
*enacts,  that  "it  shall  and  may  be  lawful  forany  justice  of  the  r^..  ' 
peace,  notary  public,  or  other  officer  now  by  law  authorized  to  •- 
administer  an  oath,  to  take  and  receive  the  declaration  of  any  jierson 
voluntarily  making  the  same  before  him  in  the  form  in  the  schedule  to 
this  Act  annexed ;  and  if  any  declaration  so  made  shall  be  false  and 
untrue  in  any  material  particular,  the  person  wilfully  making  such 
false  declaration  shall  be  deemed  guilty  of  a  misdemeanor." 

Erskine,  J.,  held,  in  R.  v.  Boynes,  1  C.  &  K.  65,  47  E.  C.  L.,  that 
the  enacting  words  of  this  section  were  not  restrained  by  those  in  the 
preamble,  so  as  to  exclude  from  the  operation  of  the  statute  a  decla- 
ration by  a  member  of  a  benefit  society  that  he  had  sustained  a  loss  by 
an  accidental  fire,  it  being  a  rule  of  such  benefit  society  that  any  full 
free  member  thereof,  Avho  sustained  a  loss  by  an  accidental  fire,  was  to 
be  indemnified  to  the  extent  of  15/.,  on  making  a  declaration  before  a 
magistrate  verifying  his  loss. 

On  registration  of  births,  deaths,  and  marriages.  The  statute  6 
&  7  Will.  4,  c.  S6,  s.  41,  which  formerly  related  to  births  and  deaths 
as  well  as  marriages,  enacts  that  ''  every  person  who  shall  wilfully 
make,  or  cause  to  be  made  for  the  purpose  of  being  inserted  in  any 
register  of  [birth,  death,  repealed  by  37  &  38  Vict.  c.  88  :  see  infra] 
marriage,  any  false  statement  touching  any  of  the  particulars  herein 
required  to  be  known  and  registered,  shall  be  subject  to  the  same  pains 
and  penalties  as  if  he  were  guilty  of  perjury." 

The  law  relating  to  the  registration  of  births  and  deaths  in  Eng- 
land is  now  governed  by  37  &  38  Vict.  c.  88,  repealing  6  &  7  Will. 
4,  as  far  as  that  statute  relates  to  births  or  deaths,  by  s.  40. 

Any  person  who  commits  any  of  the  following  offences,  that  is  to 
say  : — 

(1)  Wilfully  makes  any  false  answer  to  any  questions  put  to  him 
by  a  registrar  relating  to  the  particulars  required  to  be  registered  con- 
cerning any  birth  or  death,  or  wilfully  gives  to  a  registrar  any  false 
information  concerning  any  birth  or  death,  or  the  cause  of  any 
death  ;  or, 

(2)  Wilfully  makes  any  false  certificate  or  declaration  under  or  for 
the  purposes  of  this  Act,  or  forges  or  falsifies  any  such  certificate  or 
declaration,  or  any  order  under  this  Act,  or,  knowing  any  such  certifi- 
cate, declaration,  or  order  to  be  false  or  forged,  uses  the  same  as  true, 
or  gives  or  sends  the  same  as  true  to  any  person ;  or, 

(3)  Wilfully  makes,  gives,  or  uses  any  false  statement  or  represen- 
tation as  to  a  child  born  alive  having  been  still-born,  or  as  to  the  body 
of  a  deceased  person  or  a  still-born  child  in  any  coffin,  or  falsely  pre- 
tends that  any  child  born  alive  was  still-born  ;  or, 

(4)  Makes  any  false  statement  with  intent  to  have  the  same  entered 
in  any  register  of  births  or  deaths ; — 


G40  FALSE   DECLARATIONS. 

Shall  for  each  offence  be  liable  on  summary  conviction  to  a  penalty 
not  exceediiu;  ten  pounds  ;  and,  on  conviction  on  indictment,  to  fine 
or  to  imprisonment  witli  or  without  hard  labor  for  a  term  not  exceed- 
ino-  two  years,  or  to  penul  servitude  for  a  term  not  exceeding  seven 
years. 

As  to  destroyino;,  defacing,  etc.,  registers,  see  24  &  25  Vict.  c.  98, 
s.  36,  post,  tit.  "  Forgery." 

To  support  an  indictment  on  the  41st  section  of  the  6  &  7  Will.  4, 
c.  86,  for  making  a  false  statement  touching  the  particulars  required 
to  be  registered  for  the  purpose  of  their  being  inserted  in  a  register 
*io9T  '^ of  marriages,  it  is  essential  that  the  false  statement  should 
"■-I  have  been  made  wilfully  and  intentionally,  and  not  by  mistake 
only.  R.  V.  Lord  Dunboyne,  3  C.  &  K.  1,  j)er  Campbell,  C.  J,  To 
constitute  an  offence  under  this  section  it  is  not  essential  that  the  pur- 
pose for  wliich  the  false  declaration  was  made  should  have  been  effected. 
Per  Crcsswell,  J.,  in  R.  v.  Mason,  2  C.  &  K.  622,  61  E.  C.  L.  An 
indictment  under  this  section  charged  that  a  clergyman  had  solemnized 
a  marriage,  and  was  about  to  register  in  duplicate  the  particulars  re- 
lating to  the  marriage^  and  that  the  prisoner  did  wilfully  make  to  the 
clergyman,  for  the  purpose  of  being  inserted  in  the  register  of  mar- 
riage, certain  false  statements.  The  proof  Mas  that  the  particulars 
were  entered  by  the  clerk  of  the  church  before  the  marriage ;  that 
after  the  marriage  the  clergyman  asked  the  prisoner  if  they  were 
correct,  and  that  he  answered  in  the  affirmative,  and  the  clergyman 
signed  the  register.  It  was  held,  that  the  ))risoner  had  been  rightly 
convicted.  R.  v.  Brown,  1  Den.  C.  C.  R.  291  ;  17  L.  J.,  M.  C.  145. 
Upon  such  an  indictment  it  is  not  necessary  to  prove  that  the  marriage 
register  book  is  the  idoitical  book  directed  to  be  furnished  by  the  reg- 
istrar-general under  6  &  7  Will  4,  c.  SQ,  s.  30. 

It  was  a  felony,  under  sect.  43  of  the  6  &  7  Will.  4,  c.  86,  now  re- 
pealed, to  cause  the  registrar  to  make  an  entirely  false  entry  of  a  birth, 
marriage,  or  death.  Per  Cresswell,  J.,  in  R.  v.  Mason,  supra.  There- 
fore, where  a  woman  went  to  a  registrar  of  births,  and  asked  him  to 
register  the  birth  of  a  child,  giving  him  the  particulars  necessary  for 
the  entry,  which  were  false,  and  he  made  the  entry  accordingly,  and 
she  signed  it  as  the  person  giving  the  information  :  it  was  held  by  the 
same  learned  judge  that  this  amounted  to  the  felony  of  causing  a  false 
entry  to  be  made  within  sect.  43,  and  was  not  merely  the  misdemeanor 
of  making  a  false  statement  under  sect.  41.  R.  v.  Dewitt,  2  C.  tfeK. 
905,  61  E.  C.  L. 

Customs.  As  to  making  false  declarations  in  matters  relating  to 
the  Customs,  see  Customs  Laws  Consolidation  Act,  39  &  40  Vict.  c. 
36,  s.  168. 

Bankruptcy.  By  the  32  &  33  Vict.  c.  62,  s.  14,  if  any  creditor  in 
any  bankruptcy  or  liquidation  by  arrangement  or  composition  with 
creditors  in  pursuance  of  The  Bankruptcy  Act,  1869,  wnHully  and 
with  intent  to  defraud  makes  any  false  claim,  or  any  proof,  dcclanxtion, 


FALSE   DECLARATIONS.  641 

or  statement  of  account  which  is  nntrue  in  any  material  particular  he 
shall  be  guilty  of  a  misdemeanor,  punishable  with  imprisonment  not 
exceeding  one  year,  with  or  without  hard  labor. 

In  other  cases.  Persons  making  false  declarations  with  respect  to 
registration  under  the  Pharmacy  Act,  1868  (31  &  32  Vict.  c.  121  s. 
14)  are  guilty  of  a  misdemeanor.  So  persons  making  false  statements 
with  respect  to  lunatics,  16  &  17  Vict.  c.  97,  s.  122;  false  declara- 
tions under  the  Capital  Punishment  Amendment  Act,  31  Vict.  c.  24 
s.  9  ;  false  certificates  under  the  Vaccination  Act,  30  &  31  Vict.  c. 
84,  s.  30  ;  false  declarations  under  the  Pensions  Commutation  Act, 
34  &  35  Vict.  c.  36,  s.  9 ;  false  declarations  under  Lodgers'  Goods 
Protection  Act,  34  &  35  Vict.  c.  79  ;  under  Land  Titles  and  Transfer 
Act,  1875,  38  &  39  Vict.  c.  87,  ss.  99,  100,  101  ;  under  the  Dentists' 
Act,  1878,  41  &  42  Vict.  c.  33,  s.  35  ;  under  the  Burials  Act,  43  &44 
Vict.  c.  41,  s.  10,  and  in  many  other  cases,  are  guilty  of  misdemeanors. 


41 


642  FALSE  PERSONATION. 


*493]  *FALSE  PERSONATION. 

PAGE 

Offence  at  common  law 493 

by  statute ,        .        .        .  493 

Personating  bail— acknowledging  recovery,  etc 493 

False  personation  of  soldiers  and  seamen 493 

voters ,  494 

Personating  owners  of  real  estate,  etc 495 

owners  of  stocks,  etc 496 

Oflfence  at  common  law.  The  offence  of  falsely  personating  another 
for  the  purpose  of  fraud  is  a  misdemeanor  at  common  law,  and  pun- 
ishable as  such.  2  East,  P.  C.  1010  ;  2  Russ.  Cri.  886,  5th  ed.  In 
most,  cases  of  this  kind,  however,  it  is  usual,  where  more  than  one  are 
concerned  in  the  offence,  to  proceed  as  for  a  conspiracy ;  and  very  few 
cases  are  to  be  found  of  prosecutions  at  common  law  for  false  persona- 
tion. In  one  case,  where  the  indictment  merely  charged  that  the  pris- 
oner personated  one  A.  B.,  clerk  to  H,  H.,  justice  of  the  peace,  with 
intent  to  extort  money  from  several  persons,  in  order  to  procure  their 
discharge  from  certain  misdemeanors,  for  which  they  stood  committed, 
the  court  refused  to  quash  the  indictment  on  motion,  but  put  the  de- 
fendant to  demur.  R.  v.  Duj>ee,  2  East,  P.  C.  1010.  It  is  observed 
by  Mr.  East,  that  it  might  probably  have  occurred  to  the  court,  that 
this  was  something  more  than  a  bare  endeavor  to  commit  a  fraud  by 
means  of  falsely  personating  another,  for  that  it  was  an  attempt  to 
pollute  public  justice.     Id.^ 

Offence  by  statute.  In  a  variety  of  statutes  against  forgery,  pro- 
visions are  likewise  contained  against  false  personation,  which  in  gen- 
eral is  made  felony.      Vide  post,  tit.  "  Forgery." 

Personating  bail — acknowledging  recovery,  etc.  By  the  24  &  25 

Vict.  c.  98,  s.  34,  "  whosoever  without  lawful  authority  or  excuse,  the 
proof  whereof  shall  lie  on  the  party  accused,  shall  in  the  name  of  any 
other  person  acknowledge  any  recognizance  or  bail,  or  any  cognovit 
actionem,  or  judgment,  or  any  deed,  or  other  instrument,  before  any 
court,  judge,  or  other  person  lawfully  authorized  in  that  behalf,  shall  be 
guilty  of  felony,  and  being  convicted  thereof  shall  be  liable,  at  the  dis- 
cretion of  the  court,  to  be  kept  in  penal  servitude  for  any  term  not 
exceeding  seven  years  and  not  less  three  [now  five]  years,  or  to  be  im- 
prisoned for  any  term  not  exceeding  two  years,  with  or  without  hard 
labor,  and  with  or  without  solitary  confinement." 

False  personation  of  soldiers  and  seamen.  The  false  personation  of 
soldiers  and  seamen  was  made  felony  by  several  statutes,  some  of 
*  See  Eenoard  v.  Noble,  2  Johns.  Cas.  293.     S. 


FALSE   PERSONATION.  643 

which  have  been  repealed.  The  statutes  still  in  force  are,  Mith 
*respect  to  soldiers  :  7  Geo.  4,  c.  16,  ss.  35,  38  ;  2&  3  Will.  L  ,^^ 
4,  c.  53,  s.  49  ;  19  &  20  Vict.  c.  15,  s.  5 ;  44  &  45  Vict.  .c.  L  '^^^ 
57,  s.  36,  and  c.  58,  s.  142 ;  and  with  respect  to  sailors  :  28  &  29 
Vict.  c.  124,  ss.  8,  9. 

The  repealed  statute  5  Geo.  4,  c.  107,  as  well  as  the  former  statutes, 
made  use  of  the  words  "  some  officer,"  etc.,  "  entitled,  or  supposed  to 
be  entitled,"  etc.  Upon  a  prosecution,  therefore,  for  such  false  per- 
sonation there  must  be  some  evidence  to  show  that  there  was  some 
person  of  the  name  and  character  assumed,  who  was  either  entitled, 
or  might,  priind  facie  at  least,  be  supposed  to  be  entitled,  to  the  wages 
attempted  to  be  acquired.  R.  v.  Brown,  2  East,  P.  C.  1007.  Where 
the  prisoner  was  indicted  for  personating  and  falsely  assuming  the 
character  of  Peter  M'Cann,  a  seaman  on  board  the  Tremendous,  and 
it  appeared  in  evidence  that  there  had  been  a  seaman  of  the  name 
of  M'Carn  on  board  the  vessel,  but  no  one  of  the  name  of  M'Cann  ; 
the  prisoner  being  convicted,  the  judges  held  the  conviction  wrong. 
They  were  of  opinion  that  "personating"  must  apply  to  some 
person  who  had  belonged  to  the  ship,  and  that  the  indictment  must 
charge  the  personating  of  some  such  person.  R.  v.  Tannet,  Russ.  & 
Ry.  351. 

It  has  been  held  that  the  offence  is  the  same,  though  the  seaman 
personated  was  dead  at  the  time  the  oifence  was  committed.  R.  v. 
Martin,  Russ.  &  Ry.  324 ;  R.  v.  Cramp,  Id.  327. 

Under  the  repealed  statute  57  Geo.  3,  c.  127,  it  was  held,  that  all 
persons  present  aiding  and  abetting  a  person  in  personating  a  seaman, 
Avere  principals  in  the  offence.     R.  v.  Pott,  Russ.  &  Ry.  353. 

Under  the  2  Will.  4,  c.  43,  s.  49,  on  an  indictment  against  B.  for 
personating  a  soldier,  it  appeared  that  A.  instigated  B.  to  represent 
himself  to  be  C,  the  soldier  entitled  to  the  prize  money.  The  learned 
judge  (Lush,  J.)  directed  the  jury  that  if  they  believed  that  A.  insti- 
gated B.  to  represent  himself  as  C,  and  that  B.  knowingly  and 
wilfully  represented  himself  as  C,  then  whatever  B.'s  motive  may 
have  been  both  were  equally  guilty.  Even  if  B.  believed  A.  was 
really  C,  or  had  C.'s  authority  to  get  the  money,  yet  if  he  falsely 
represented  himself  to  be  C,  thougli  authorized  by  A.  to  do  so,  he 
would  be  guilty.     R.  v.  Lake,  11  Cox,  C.  C.  333. 

False  personation  of  voters.  To  falsely  personate  a  burgess  at  an 
election  of  a  town-councillor  was  no  offence  at  common  law,  and  was 
no  offence  under  the  repealed  statute  5  &  6  Will.  4,  c.  76  ;  R.  v. 
Thompson,  1  Den.  C.  C.  R.  355,  but  was  made  an  offence  by  the  22 
Vict.  c.  35,  s.  9,  which  statute  is  now  repealed.  Under  that  statute 
tendering  a  voting  paper  in  a  wrong  name  was  held  to  be  a  persona- 
tion, although  upon  being  asked,  the  prosecutor  at  once  admitted  that 
he  was  not  the  person  named  in  the  voting  paper,  and  though  the 
vote  was  not  recorded.  R.  v.  Hague,  9  Cox,  C.  C.  412.  At  the 
election  of  a  poor-law  guardian  under  the  14  &  15  Vict.  c.  105,  s.  3, 
it  was  held  not  an  offence  to  tender  a  voting  paper  purporting  to  be 


644  FALSE   PERSONATION. 

signed  by  a  man  wlio  was  dead,  the  words  of  the  statute  being  "  any 
person  who  shall  personate  any  person  entitled  to  vote,"  and  as  the 
man  was  dead,  he  could  not  be  said  to  be  entitled  to  vote.  Whitley  v. 
Chappell,  11  Cox,  C.  C.  307,  Q.  B.,  Lush,  Hannen,  and  Hayes,  J  J., 
38  L.  J.,  M.  C.  51 ;  Q.  B.  70. 

The  45  &  46  Vict.  c.  50,  s.  77,  now  makes  personation  at  muni- 
cipal elections  a  corrupt  practice  punishable  as  if  committed  at  a 
^  ,^p-,  *parliamentary  election;  and  sect.  78  enacts,  that  "a  person 
J  guilty  of  a  corrupt  practice  at  a  municipal  election  sliall  be 
liable  to  the  like  actions,  prosecutions,  penalties,  forfeitures  and  pun- 
ishments, as  if  the  corrupt  practice  had  been  committed  at  a  parlia- 
mentary election."  Sect.  84  provides  for  the  costs  and  expenses  of  the 
prosecution. 

By  the  Ballot  Act,  1872,  35  &  36  Vict.  c.  33,  s.  24,  it  is  enacted 
that  the  following  enactments  shall  be  made  with  respect  to  persona- 
tion at  parliamentary  and  municipal  elections : 

A  person  shall,  for  all  purposes  of  the  laws  relating  to  parliament- 
ary and  municipal  elections,  be  deemed  to  be  guilty  of  the  offence  of 
personation,  who  at  an  election  for  a  county  or  borough,  or  at  a  muni- 
cipal election  applies  for  a  ballot  paper  in  the  name  of  some  other 
person,  whether  that  name  be  that  of  a  person  living  or  dead,  or  of  a 
fictitious  person,  or  who  having  voted  once  at  any  such  election  applies 
at  the  same  election  for  a  ballot  paper  in  his  own  name. 

By  46  &  47  Vict.  c.  51,  s.  6  (2),  a  person  wdio  commits  the  offence 
of  personation,  or  of  aiding,  al)etting,  counselling,  or  procuring  the 
commission  of  that  offence,  shall  be  guilty  of  felony,  and  any  person 
convicted  thereof  on  indictment  (defined  by  sect.  64,  to  include  "in- 
formation "),  shall  be  punished  by  imprisonment  for  a  term  not  ex- 
ceeding two  years,  together  with  hard  labor;  and  by  the  second  para- 
graph of  sect.  24  of  the  Ballot  Act,  1872,  which  is  still  unrepealed 
(see  46  &  47  Vict.  c.  51,  sched.  5)  it  shall  be  the  duty  of  the  return- 
ing officer  to  institute  a  prosecution  against  any  person  whom  he  may 
believe  to  have  been  guilty  of  personation,  or  of  aiding,  abetting, 
counselling,  or  procuring  the  commission  of  the  offence  of  personation 
by  any  person  at  the  election  for  which  he  is  returning  officer,  and  the 
costs  and  expenses  of  the  prosecutor  and  the  witnesses  in  such  case, 
together  with  compensation  for  their  trouble  and  loss  of  time, 
shall  be  allowed  by  the  court  in  the  same  manner  in  which  courts  are 
empowered  to  allow  the  same  in  cases  of  felony.  See  as  to  municipal 
elections,  45  &  46  Vict.  c.  50,  parts  3,  4.  The  provision  of  the  Reg- 
istration Acts  specified  in  the  Third  Schedule  to  the  Ballot  Act,  1872, 
shall  in  England  (6  &  7  Vict.  c.  18,  ss.  85—89)  and  Ireland  (13  &  14 
Vict.  c.  69,  ss.  92 — 96)  respectively  apply  to  personation  under  this 
act  in  the  same  manner  as  they  apply  to  a  person  who  knowingly  per- 
sonates and  falsely  assumes  to  vote  in  the  name  of  another  person  as 
mentioned  in  the  said  acts. 

By  46  &  47  Vict.  c.  51,  s.  3,  the  offence  of  personation,  and  of 
aiding,  abetting,  counselling,  and  procuring  the  commission  of  the 
offence  of  personation  is  a  corrupt  practice  within  the  meaning  of  the 


FALSE   PERSONATION.  645 

Corrupt  Practices  Prevention  Act,  1854  (17  &  18  Vict.  c.  102  ss.  2 
Z,ante,  p.  ,'U4;  and  the  Parliamentary  Elections  Act,  1868,31  &  zi 
Vict.  c.  1 2').)  For  other  offences  and  elections,  sec  ante,  tit.  "  Elec- 
tions ; "  and  ante,  tit.  "  Bribery." 

Personating  owners  of  real  estate,  etc.  Personation  in  order  to 
deprive  any  jierson  of  real  estate  or  other  property  is  now  governed 
by  37  &  38  Vict.  c.  36,  an  act  passed  after  the  notorious  attempt  of 
Arthur  Orton  to  obtain  possession  of  estates  and  other  property  by 
psrsonatinir  Sir  Roger  Tichborne.  By  s.  l,"if  any  person  shall  liilsely 
and  deceitfully  personate  any  person,  or  the  heir,  executor,  or  admin- 
istrator, wife,  widow,  next  of  kin,  or  relation  of  any  person  with 
intent  fraudulently  to  obtain  any  land,  estate,  chattel,  money,  vahia- 
ble  security,  or  property,  he  shall  be  guilty  of  felony,  and,  upon 
*conviction,  shall  be  liable,  at  the  discretion  of  the  court  by  r^.^^ 
which  he  is  convicted,  to  be  kept  in  penal  servitude  for  life,  or  L  '"^^o 
any  period  not  less  than  five  years,  or  to  be  imprisoned  for  any  terra 
not  exceeding  two  years,  with  or  without  hard  labor,  and  with  or  with- 
out solitary  confinement." 

Sect.  2,  "  nothing  in  this  act  shall  prevent  any  person  from  being 
proceeded  against  and  punished  under  any  other  act,  or  at  common 
law,  in  respect  of  an  offence  (if  anv)  punishable  as  well  under  this  act 
as  under  any  other  act,  or  at  common  law. 

By  s.  3,  the  offence  is  not  triable  at  quarter  sessions. 

Personating  owners  of  stock,  etc.  See  the  24  &  26  Vict.  c.  98, 
s.  4,  post,  tit.  "  Forgery,"  26  &  27  Vict.  c.  73,  s.  14  (India  stock), 
30  &  31  Vict.  c.  131,  s.  35  (ordinary  shares,  etc.),  33  &  34  Vict  c. 
68,  s.  4,  (National  Debt). 


646 


FALSE  PRETENCES. 


*497] 


•FALSE  PRETENCES. 


Obtaining  money,  etc..  by  false  pretences 

No  acquittal  because  the  offence  amounts  to  larceny 

Form  of  indictment  and  evidence 

Causinf  money,  etc.,  to  be  delivered  to  another  person  . 

Inducing  persons  by  fraud  to  execute  deeds  and  other  instruments  . 

Interpretation ,*    »  ," 

Indictment  for  obtaining  money,  etc.,  by  false  pretences  not  to  be 

preferred  unless  authorized ,        . 

Obtaining  credit  by  false  pretences     ..... 
What  constitutes  an  "  obtaining  by  false  pretence" 

1.  The  obtaining        .         .      _  •         ,        .        .        , 

Meaning  of  word  obtain     ..... 
Obtaining  as  a  loan        .        ,        .        . 
Result  of  the  false  pretence        .        .        ,        . 
Constructive  obtaining  .        . 

Causing  money,  etc.,  to  be  delivered  ta  another 
Obtaining  amounting  to  larceny 
Obtaining  by  means  of  a  forged  document 

2.  The  nature  of  the  pretence 

Existing  fact       ...  ... 

Combination  of  several  false  statements 

Acts  and  not  words 

False  account  of  wages  paid,  work  done,  weight  de 
livered,  etc 


False  pretence   of  quality,    quantity,  or    weight  in 

course  of  a  contract — puff  . 
Pretences  obviously  false — no  defence 
3.  The  property  obtained  .... 

Cliattel,  money,  or  valuable  security 
Proof  of  the  false  pretences  being  made      .        , 

of  the  falsity  of  the  pretences 
Evidence  confined  to  the  issue      .         .        ,        . 
Proof  of  intent  to  cheat  or  defraud   .... 

the  ownership  of  the  projierty 
Pretence  to  one  person — money  o))tained  from  another 
Pretence  made  through  an  innocent  agent  . 
Proof  of  all  being  principals     .... 

Form  of  indictment 

Description  of  property 

Obtaining  bounty-money 

Venue 


PAOB 

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525 


Obtaining  money,  etc.,  by  false  pretences.  By  24  &  25  Viet.  c. 
96,  s.  88,  whosoever  sliall,  by  any  fiilse  pretence,  obtain  from  any  other 
person  any  chattel,  money,  or  valnable  security,  with  intent  to  defraud, 
shall  be  i^uilty  of  a  misdemeanor,  and  being  convicted  thereof  shall 
*4Qsn  *  liable,  at  the  discretion  of  the  court,  to  be  kept  in  penal  ser- 
J  vitude  for  the  term  of  three  [now  five]  years,  or  to  be  impris- 
oned for  any  terra  not  exceeding  two  years,  with  or  without  hard 
labor,  and  with  or  without  solitary  confinement. 

No  acquittal  because  the  offence  amounts  to  larceny.  By  the 
same  section  it  is  proyided  "  that  if,  upon  the  trial  of  any  person  in- 
dicted for  such  misdemeanor,  it  shall  be  proved  that  he  obtained  the 


FALSE   PRETENCES.  647 

property  in  question  in  any  such  manner  as  to  amount  in  law  to  lar- 
ceny, he  shall  not,  by  reason  thereof,  be  entitled  to  be  ac{iuitte(l  of  such 
misdemeanor;  and  no  person  tried  for  such  misdemeanor  shall  be 
liable  to  be  afterwards  prosecuted  for  larceny  upon  the  same  fa(!ts." 

Form  of  indictment  and  evidence.  By  the  same  section,  "  pro- 
vided also,  that  it  shall  be  sufficient  in  any  indictment  for  obtaiuinw-, 
or  attempting-  to  obtain,  any  such  property  by  false  pretences  to  allege 
that  the  party  accused  did  the  act  with  intent  to  defraud,  without 
alleging  any  intent  to  defraud  any  particular  person,  and  without 
alleging  any  ownership  of  the  chattel,  money,  or  valuable  security  ;* 
and,  on  the  trial  of  any  such  indictment,  it  shall  not  be  necessary  to 
prove  an  intent  to  defraud  any  particular  person,  but  it  shall  be 
sufficient  to  prove  that  the  party  accused  did  the  act  charged  with  an 
intent  to  defraud." 

Causing  money,  etc.,  to  be  delivered  to  another  person.     By  s. 

89,  "  whosoever  shall  by  any  false  pretence  cause  or  procure  any  money 
to  be  paid,  or  any  chattel  or  valuable  security  to  be  delivered  to  any 
other  person,  for  the  use  or  benefit,  or  on  account  of  the  person  making 
such  false  pretence,  or  of  any  other  person  with  intent  to  defraud, 
shall  be  deemed  to  have  obtained  such  money,  chattel,  or  valuable 
security  within  the  meaning  of  the  last  preceding  section." 

Inducing  persons  by  fraud  to  execute  deeds  and  other  instru- 
ments. By  s.  90,  "  whosoever  with  intent  to  defraud  or  injure  any 
other  person  shall,  by  any  false  pretence,  fraudulently  cause  or  induce 
any  other  person  to  execute,  make,  accept,  indorse,  or  destroy  the  whole 
or  any  part  of  any  valuable  security,  or  to  write,  impress,  or  affix  his 
name,  or  the  name  of  any  other  person,  or  of  any  company,  firm  or 
co-partnership,  or  the  seal  of  any  body  corporate,  company,  or  society, 
upon  any  paper  or  parchment,  in  order  that  the  same  may  be  after- 
wards made  or  converted  into,  or  used,  or  dealt  with  as  a  valuable 
security,  shall  be  guilty  of  a  misdemeanor,  and  being  convicted 
thereof,  shall  be  liable,  at  the  discretion  of  the  court,  to  be  kept  in 
penal  servitude  for  the  term  of  three  [now  five]  years,  or  to  be  im- 
prisoned for  any  term  not  exceeding  two  years,  with  or  without  hard 
labor,  and  with  or  without  solitary  confinement."^ 

Interpretation.  As  to  the  meaning  of  the  term  "  valuable  security," 
see  24  &  25  Vict.  c.  96,  s.  1 ;  infra,  tit.  "  Larceny." 

^  An  indictment  for  false  pretences  must  state  the  owner  of  the  goods  obtained. 
Commonwealth  v.  Graham,  1  County  Ct.  Rep.  (Pa.)  282.  And  must  show  what  the 
false  pretences  are  ;  it  is  not  sufficient  to  charge  the  crime  substantially  in  the  lan- 
guage of  the  statute.  Commonwealth  v.  Dennis,  1  County  Ct.  Kep.  (Pa.)  2/8;  Com- 
monwealth V.  Frey,  14  Wright,  245. 

2  To  susUin  a  criminal  prosecution  for  obtaining  the  signature  of  one  to  a  mortgage 
by  false  pretences,  the  mere  fact  of  the  instrument  being  signed  is  not  enough ;  a  de- 
livery must  also  be  shown,  Fenton  v.  People,  4  Hill,  126.    S. 


G48'  FALSE   PRETENCES. 

Indictment  for  obtaining  money,  etc.,  by  false  pretences  not  to 
be  preferred  unless  authorized.  By  the  22  &  23  Vict.  c.  17,  supra, 
p.  192,  no  indictment  for  obtaining  money  or  other  property  by  false 
pretences  is  to  be  presented  or  found  by  the  grand  jury  unless  the 
party  has  been  connnitted  by  a  magistrate,  or  the  indictment 
*/iQal  *otherwise  authorized,  as  there  mentioned.  See  this  statute  in 
J  the  Appendix.  And  see  now  30  &  31  Vict.  c.  35,  s.  1,  in 
Appendix. 

Obtaining  credit  by  false  pretences.  The  obtaining  credit  by 
false  pretences  under  the  Debtors  Act,  1869  (32  &  33  Vict.  c.  62),  s. 
13,  is  dealt  with,  ante,  tit.  "  Bankruptcy,"  p.  318. 

What  constitutes  an  obtaining  by  false  pretence  within  the 
statute.  Great  difficulty  has  been  experienced  in  deciding  where  to 
draw  the  line  between  the  frauds  which  may  be  punished  criminally 
under  this  statute  and  those  which  only  give  rise  to  civil  remedies.  On 
the  one  hand,  the  tendency  of  modern  legislation  and  modern  opinion 
has  been,  as  far  as  possible,  to  bring  all  frauds  within  the  penalties  of 
the  criminal  law.  On  the  other  hand,  the  necessity  has  been  felt  that 
the  line  which  separates  the  criminal  law  should  be  clearly  drawn. 
The  consequence  is,  that  there  is  some  conflict  between  the  decisions, 
as  will  appear  from  a  perusal  of  the  following  cases.  These  cases  are 
arranged,  as  far  as  possible,  under  the  following  heads :  1st.  Those 
which  relate  to  the  act  of  obtaining  the  property.  2ndly.  Those  which 
relate  to  the  nature  of  the  pretences  which  were  used  in  obtaining  the 
property.  3rdly.  Those  which  relate  to  the  nature  of  the  property 
obtained.  This  arrangement,  it  is  hoped,  will  be  found  to  be  more 
convenient,  and  will  render  a  comparison  of  the  somewhat  conflicting 
decisions  less  perplexing  than  the  chronological  arrangement  of  the 
cases  in  the  previous  editions  of  this  work.  In  reading  these  cases,  it 
should  be  borne  in  mind  that  there  is  a  distinction  between  holding 
that  a  sufficient  false  pretence  has  not  been  alleged  in  the  indictment, 
and  that  a  sufficient  false  pretence  has  not  been  proved.  Many  ex- 
pressions of  the  court  in  various  cases,  which  are  apparently  contra- 
dictory, may  be  reconciled  if  this  distinction  be  attended  to.^ 

^  A  representation,  though  false,  is  not  within  the  statute  against  obtaining  property, 
etc.,  by  false  pretences,  unless  calculated  to  mislead  persons  of  ordinary  prudence  and 
caution.  People  v.  Williams,  4  Hill,  9.  An  indictment  lies  for  obtaining  goods  by 
false  pretences  where  a  party  represents  himself  to  be  tlie  owner  of  property, 
which  does  not  belong  to  him,  and  thus  fraudulently  induces  the  owner  to  sell  the 
goods  to  him  on  credit.  People  v.  Kendall,  25  Wend.  3.39.  Where  it  was  proved 
that  the  owner  of  a  horse  represented  to  anotlier,  that  liis  horse,  which  was  ofieied  in 
exchange  for  the  property  of  the  other,  was  called  the  Charley,  wlien  he  knew  that  it 
was  not  the  horse  called  by  that  name,  and  that  by  such  false  representation  lie  ob- 
tained the  property  of  the  other  person  in  exchange;  it  was  held,  that  the  indictment 
was  sustained,  although  the  horse  said  to  be  the  Charley  was  equal  in  value  to  the 
property  received  in  exchange,  and  as  good  a  liorse  as  the  Charley.  State  i\  Mills,  17 
Me.  211.  It  is  a  well-settled,  and  a  rational  rule  tliatthe  false  pretences,  in  order  to  sus- 
tain an  indictment,  must  be  such  that,  if  true,  they  would  naturally,  and  according  to 
the  usual  operation  of  motives  upon  the  minds  of  persons  of  ordinary  prudence,  pro- 
duce the  alleged  results ;  or  in  other  words,  that  the  act  done  by  the  person  defrauded, 


FALSE  PRETENCES.  G49 

1.   THE   "obtaining." 

Meaning  of  the  word  "  obtain."  Tho  property  must  be  "  ob- 
tained "  by  the  prisoner.  In  R.  v.  Garrett,  see  infm,  p.  o()3,  Maule 
J.,  said,  "the  word  *  obtain'  means  tlie  same  as  the  word  't^et'  in  its 
sense  of  'acquire,'"  and  Parke,  B.,  said,  "the  word  'ol)t;iin'  seems 
to  moan  not  so  much  a  defrauding  or  depriving  an(jther  man  of  his 
])ronerty  as  the  obtaining  some  benefit  to  the  party."  But  in  R  v 
Kiliiam,  L.  R.  1  C.  C.  R.  261  ;  39  L.  J.,  M.  C.  109,  infm,  p.  m] 
it  was  held  that  the  word  "  obtain  "  does  not  mean  obtain  the  loan  of, 
but  obtain  the  property  in,  and  that  the  obtaining  must  be  coupled 
with  au  intention  to  deprive  the  owner  of  his  property,  and  not  a 
mere  intention  to  make  use  of  the  thing  and  return  it.  It  was  in 
consequence  of  the  decision  in  R.  v.  Garrett,  infra,  tiiat  section  89, 
supra,  498,  was  enacted,  under  which  it  is  necessary  that  the  defend- 
ant should  obtain  in  the  sense  of  "  get "  or  "  acquire "  for  his  own 
benefit,  and  it  is  sufficient  under  that  section  if  he  causes  money, 
etc.,  to  be  paid  to  any  other  person,  whether  for  his  own  benefit  or 
for  the  benefit  of  anybody  else. 

Obtaining  as  a  loan.  Very  frequently  chattels,  moneys,  or  valua- 
ble securities  are  fraudulently  obtained,  but  only  by  way  of  a  loan. 
The  result  of  the  cases  appears  to  be  that  it  is  immaterial  whether  the 
prosecutor  regarded  the  matter  as  a  loan  or  not,  but  there  must  be  an 
intention  in  the  mind  of  the  prisoner  to  deprive  the  owner  wholly  of 
*his  property,  and  not  a  mere  intention  to  make  use  of  the  thing  r:^r(\o 
obtained  and  then  return  it.  The  prisoner  had  accepted  a  bill  •- 
drawn  upon  him  by  the  prosecutor  for  2,638/.,  which  he  owed  the  lat- 
ter. AVheu  the  bill  became  due,  the  prosecutor  asked  the  prisoner  if  he 
was  prepared  to  pay  it,  and  the  prisoner  said  he  had  enough  all  but 
300/.,  and  that  he  expected  to  get  the  loan  of  that  from  a  friend.  The 
prosecutor,  who  was  not  any  longer  the  holder  of  the  bill,  exjjressed 
his  willingness  to  advance  the  300/.  himself,  and  ultimately  did  so ; 
but  the  prisoner,  instead  of  taking  up  the  bill,  applied  the  300/.  to  his 
own  purposes,  and  suffered  the  bill  to  be  dishonored,  and  the  prose- 
cutor eventually  had  to  pay  it.  Evidence  was  also  given,  that  at  the 
time  the  prisoner  obtained  the  money,  he  was  not  in  possession  of 
funds  sufficient  to  make  up  the  balance  between  the   2,638/.  and  the 

must  be  such  as  the  apparent  exigency  of  the  case  would  directly  induce  an  honest 
and  ordinary  prudent  person  to  do,  if  the  pretences  were  true.  People  v.  Stetson,  4 
Barb.  151. 

See  further,  Tompkins  v.  State,  33  Tex.  228  ;  Robinson  v.  State,  Id.  341 ;  Common- 
wealth ('.  Hooper,  14  Mass.  549 ;  State  v.  Scott,  48  Mo.  422 ;  State  v  Lincoln,  49 
N.  H.  464 ;  Smith  v.  People,  47  N.  Y.  303 ;  Commonwealth  v.  Poulson,  4  Clark,  20 ; 
McCord  V.  People,  46  N.  Y.  470;  State  v.  Evers,  49  Mo.  542;  Scott  v.  People,  62 
Barb.  62.  Representing  a  bogus  check  as  good— held  an  indictable  folse  pretence, 
and  not  a  mere  promise  that  the  check  should  be  paid.  Maley  «'.  State,  31  Ind.  192, 
Paying  or  exchanging  counterfeit  money  for  goods  is  not  obtaining  them  on  fiilse 
pretences.  Check  v.  State,  1  Cold.  172.  False  pretence  though  the  party  might  by 
common  prudence  have  avoided  the  imposition.  People  v.  Pray,  1  Mich.  (N.  P.)  69. 
False  pretence  must  be  such  as  is  calculated  to  impose.  Commonwealth  v.  Hutchin- 
son, 1  "Clark,  302.    S. 


G50  FALSE   PEETENCES. 

300?.,  but  was  in  insolvent  circumstances.     For  the  prisoner  it  was 
contended,  that  the  representation  was  not  a  false  pretence  within  tlie 
statute,  being  a  mere  misstatement,  or  at  the  worst  a  naked  lie,  and  R. 
V.  Codrington,  infra,  was  cited  ;  and  secondly,  that  the  act  did  not  ex- 
tend to  cases  where  the  prosecutor  had  only  lent,  not  parted  with  the 
property  of  the  goods  or  money,     l^atteson,  J.,  said   "  The  words  of 
this  act  are  very  general,  and  I  do  not  think  I  can  withdraw  the  case 
from  the  jury.     If  they  are  .satisfied  that  the  prisoner  fraudulently  ob- 
tained the  300/.  from  the  prosecutor  by  a  deliberate  falsehood,  averring 
that  he  had  all  the  funds  required  to  take  up  the  bill,   except  300l 
when  in  fact  he  knew  that  he  had  not,  and  meaning  all  the  time  to  ap- 
ply the  300/.  to  his  own  purposes,  and  not  to  take  up  the  bill,  it  appears 
to  me  that  the  jury  ought  to  convict  the  prisoner.     In  R.  v.  Codring- 
ton, it  does  not  appear  that  the  prisoner  did  distinctly  allege  that  he 
had  a  good  title  to  the  estate  which  he  was  selling.     As  to  the  money 
being  advanced  by  the  prosecutor  only  as  a  loan,  the  terms  of  the  act 
of  parliament  embrace  every  mode  of  obtaining  money  by  false  pre- 
tences, by  loan  as  well  as  by  transfer."     The  prisoner  was  acquitted. 
R.  V.  Crossley,  2  Moo.  &  R.  17  ;    2  Lew.  C.  C.  164.     The  prisoner 
represented  to  the  prosecutor  that  he  had  built  a  house  worth  300/.  on 
certain  land,  and  deposited  with  the  prosecutor  a  lease  of  the  land  as 
a  security,  and  entered  into  a  written  agreement  to  execute  a  mortgage 
of  the  land  ;    whereas  in  fact  the  house  was  built  on   land  adjoining, 
which  had  already  been   mortgaged  by  the  defendant.     By  these  false 
statements,  the  prosecutor  was  induced  to  advance  the  sum  of  80/.,  by 
way  of  loan,  which  he  paid  to  the  prisoner.     It  was  held  by  all  the 
judges  that  the  prisoner  was  properly  convicted  of  obtaining  the  money 
by  false  pretences.     R.  v.  Burgon,  25  L.  J.,  M,  C.  105.     In  R.  v.  Cod- 
rington, 1  C.  &  P.  661,  12  E.  C.  L.,the  indictment  stated  that  the  de- 
fendant, by  falsely  pretending  to  the  prosecutor  that  he  was  entitled  to  a 
reversionary  interest  in  one-seventh  share  of  a  sum  of  money  left  by 
his  grandfather,  obtained  the  sum  of  29/.  3s.  from  the  prosecutor.     It 
was  proved  that  the  defendant  asked  the  prosecutor  to  purchase  the 
seventh  part  of  an  interest   in  some  money  to  which  he  would  be 
entitled  on  the  death  of  a  relation  ;  and  that  the  prosecutor  agreed  to 
do   so ;    and  an   assignment  was  accordingly  prepared  containing  a 
covenant  for  title,  and  the    money    paid    by   the   prosecutor  to  the 
defendant.     A  previous  assignment  of  the  same  interest  by  the  de- 
fendant to  a  person  named  Peek  was  then  put  in.     After  argument, 
Littledale,  J.,  held  that  this  was  not  an  indictable  offence,  but  was 
only  a  breach  of  covenant  for  title,  for  which  a  civil  action  would  lie, 
*5mi    *^*^^  Patteson,  J.,  in  R.  v.  Crossley,   supra,  said  it  did  not  ap- 
^   pear  that  the  prisoner  in  R.  v.  Codrington  tlid  distinctly  allege 
that  he  had  a  good  title  to  the  estate  which  he  was  selling. 

A  railway  pass  ticket  was  obtained  by  a  person  in  order  to  enable 
him  to  travel  free.  At  the  end  of  the  journey  he  would  have  to  return 
it  to  the  possession  of  the  owner.  The  court  having  held  that  it  was 
a  "  chattel,"  held  also  that  the  fact  that  it  was  to  be  returned  at  the 
end  of  the  journey  did  not  alFect  the  question.     R.  v.  Boulton,  1  Den. 


FALSE   PRETENCES.  651 

C.  C.  R.  508  ;  19  L.  J.,  M.  C.  67.  It  is  said  by  the  court  in  R.  v. 
Kilhara,  infra,  that  the  reasons  for  tlie  above  decision  do  not  very 
clearly  appear,  but  that  it  might  be  said  that  the  prisoner,  by  usinc 
the  ticket,  entirely  converted  it  to  his  own  use  for  the  only  purpose  iiir 
which  it  was  capable  of  being  api)lied.  But  where  a  man  by  fiiLse 
pretences  obtained  a  horse  on  hire,  and  rode  him  for  the  day,  and  re- 
turned him  in  the  evening,  but  never  paid  the  hire,  it  was  hdd  that  as 
he  had  no  intention  to  deprive  the  owner  of  his  property  in  tiie  horse 
or  to  appropriate  it  to  himself,  but  only  intended  to  obtain  the  use  of 
it  for  a  limited  time,  he  could  not  be  convicted  of  obtaining  the  horse 
by  false  pretences.  The  word  "  obtain  "  does  not  mean  obtain  the 
loan  of,  but  obtain  the  property  in,  any  chattel,  etc.  R.  v.  Kilham, 
L.  R.,  1  C.  C.  R.  261 ;  39  L.  J.,"M.  C.  109.  Had  the  prisoner,  in  the 
above  case,  meant  to  ride  away  with  the  horse  altogether  wliieh  he 
fraudulently  pretended  to  hire,  tliat  would  have  been  an  obtaining  by 
false  pretences,  but  it  would  also  have  amounted  to  a  larceny.  See 
"  Larceny/'  post,  and  see  post,  p.  503. 

Result  of  the  false  pretence.  The  obtaining  must  be  the  result  of 
the  false  pretences,  and  must  not  be  too  remotely  connected  with  them.^ 
In  R.  V.  Ady,  7  C.  &  P.  140,  32  E.  C.  L.,  for  the  defence  an  en- 
deavor was  made  to  show  that  the  prosecutor  and  his  friend  went  to  the 
defendant,  well  knowing  who  he  was,  for  the  purpose  of  making 
evidence  to  support  the  case  against  him,  and  that  they  parted  with 
their  money  Avith  a  full  knowledge  that  the  pretence  Avas  false. 
Patteson,  J.,  is  reported  to  have  said,  if  the  defendant  did  obtain  the 
money  by  false  pretences,  and  knew  them  to  be  false  at  the  time,  it 
does  not  signify  Avhether  they  intended  to  entrap  him  or  not.  But 
according  to  the  subsequent  cases  the  defence  set  up  would,  if  proved, 
have  been  good.  Thus  in  R.  v.  Mills,  Dears.  &  B.  C.  C.  205 ; 
26  L.  J.,  M.  C.  79,  the  prisoner  was  convicted  on  an  indictment, 
which  alleged  that  the  money  was  obtained  by  the  prisoner  by  a 
false  pretence  that  he  had  cut  sixty-three  fans  of  chaff,  Avhen  in  fact 
he  had  only  cut  forty-five  fans,  for  which  he  demanded  10s.  6(/.,  being 
at  the  rate  of  2d.  a  fan.  The  prosecutor  had  seen  the  prisoner  nuiiove 
eighteen  fans  of  chaff,  from  a  heap  for  which  he  was  not  entitled  to  be 
paid,  and  place  them  Avith  that  for  Avhich  he  Avas  entitled  to  be  paid  ; 
and  notwithstanding  that  the  prisoner's  fraud  was  thus  exposed,  paid 
him  the  amount  Avhich  he  demanded.  It  was  held  that  the  convic- 
tion Avas  wrong,  as  the  money  Avas  not  obtained  by  means  of  the 
false  pretence.  The  prisoner  might  hoAvever  be  convicted  of  the 
attempt.  R.  v.  Hensler,  11  Cox,  C.  C.  R.  570.  In  R.  v.  Gardner,  25 
L.  J.,  M.  C.  100,  the  prisoner  represented  himself  to  be  a  naval  officer, 
and  by  that  false  pretence  obtained  lodging,  but  not  board.     He  sub- 

^  Owner  must  part  with  his  property  on  the  faith  of  the  pretences.  Clark  v.  Peo- 
ple, 2  Lans.  329.  In  an  indictment  for  obtaining  goods  by  falsely  pretending  tJiat  the 
defendant  was  acting  for  an  undisclosed  principal,  the  vendor  may  testify  that  he  gave 
credit  to  such  principal,  although  in  iiis  books  of  account  he  entered  the  transaction 
as  a  sale  to  the  defendant,  and  made  out  a  bill  of  parcels  in  that  form.  Commonwealth 
V.  Jeffries,  7  Allen,  548.     S. 


652  FALSE   PRETENCES. 

sequently  and  without  any  fresli  pretence  obtained  articles  of  food, 
and  was  indicted  for  obtaining  articles  of  food  by  falsely  pretending 
he  was  a  naval  officer ;  it  was  held  that  the  obtaining  of  the  articles. 
^  -,  *()f  food  was  too  remotely  the  result  of  the  false  pretence.  So 
^^^J  in  the  case  of  11.  v.  Bryan,  2  F.  &  F.  567,  where  the  first  con- 
tract was  for  board  and  lodgings,  and  the  prisoner  subsequently  ob- 
tained a  sixpence  as  a  loan,  it  was  held  too  remote.  The  prisoner  was 
charged  with  obtaining  the  prize  in  a  swimming  race  by  false  pretences. 
He  obtained  his  entry  ticket  for  the  race  by  representing  himself  to  be 
a  member  of  a  certain  club ;  on  the  faith  of  this,  which  turned  out  to 
be  false,  he  was  allowed  twenty  seconds'  start  in  the  race  and  won 
the  prize.  It  was  held  by  the  Common  Serjeant  after  consulting 
Stephen,  J.,  that  the  obtaining  the  prize  was  too  remotely  connected 
with  the  false  pretence.  R.  v.  Larner,  14  Cox,  C.  C.  497.  In  a  case 
tried  at  the  summer  assizes  at  Nottingham  in  1879  before  Lindley,  J., 
a  professional  runner,  by  representing  himself  to  be  an  amateur  and 
assuming  a  false  name,  competed  in  a  race  exclusively  for  amateurs, 
and  was  allowed  a  start,  and  won  the  race.  He  was  convicted  of 
attempting  to  obtain  a  prize  by  false  pretences.  R.  v.  Dickenson 
(not  reported).  It  would  seem,  however,  that  in  all  such  cases  the 
question  of  remoteness  is  for  the  jury.  See  R.  v.  Martin,  L.  R.,  1 
C.  C.  R.  56  ;  36  L.  J.,  M.  C.  20.  In  that  case  it  was  held  that  it  is 
not  necessary  that  the  goods  obtained  should  be  in  existence  at  the 
time  the  pretence  is  made,  provided  the  subsequent  delivery  of  the 
chattel  is  directly  connected  with  the  false  pretence,  and  such  con- 
nection is  a  question  for  the  jury.  At  all  events  where  a  false  pre- 
tence had  been  made,  and  after  the  lapse  of  some  time  allusion  is 
made  to  the  same  matters  by  the  prisoner,  and  thereupon  the  prose- 
cutor parts  with  his  property  to  the  prisoner,  it  is  for  the  jury  to  say 
whether  the  conversations  are  so  connected  as  to  form  one  continuing 
representation.     R.  v.  Welman,  Dears  C.  C.  188j  ante,  p.  93. 

Constructive  obtaining.  Where  a  prisoner  was  indicted  for  obtain- 
ing from  A.,  to  whom  he  made  the  false  pretence,  and  the  proof  was 
that  he  obtained  from  A.'s  wife,  A.  not  being  present  at  the  time  of 
obtaining,  this  was  held  to  be  an  obtaining  from  A.  R.  v.  Moseley  ; 
see  post,  p.  522.  So  where  the  prisoner  sent  a  little  boy  to  obtain 
money  from  the  prosecutor,  and  the  little  boy  innocently  brought  the 
money  to  the  prisoner,  it  was  held  to  be  an  obtaining  by  the  prisoner. 
R.  V.  Butcher ;  see  post,  p.  523.  So  where  several  persons  are  present 
and  are  acting  together  in  })ursuance  of  the  fraudulent  purpose,  there 
is  an  obtaining  by  all.  See  R.  v.  Young,  post,  p.  504 ;  and  even 
where  they  are  not  present,  if  they  have  assisted  and  concurred  in  the 
fraud.     R.  v.  Moland,  2  Moo.  C.  C.  276. 

Causing  money,  etc.,  to  be  delivered  to  another  person.  We 
have  seen,  ante,  p.  498,  that  by  the  statute  the  causing  (by  false  pre- 
tences) money,  etc.,  to  be  delivered  to  another  person  for  the  defend- 
ant's benefit,  or  any  other  person's  with  intent  to  defraud,  is  an  obtain- 


FALSE    PRETENCES.  653 

ing  by  false  pretences.  In  a  case  before  tlie  passing  of  the  Act,  the 
defendant  was  indicted  in  England  for  a  misdemeanor,  in  attempting 
to  obtain  moneys  from  L.  &  Co.  by  false  pretences.  The  defendant 
had  a  circular  letter  of  credit  for  210/.  from  D.  S.  &  Co.,  of  New 
York,  with  authority  to  draw  on  L.  &  Co.  in  London  in  favor  of 
any  of  the  correspondents  of  the  bank  for  such  portions  of  the  210/. 
as  he  might  require.  The  defendant  came  to  England  and  drew 
drafts  for  diiferent  sums,  amounting  in  all  to  less  than  210/.,  and 
then  carried  the  letter  to  St.  Petersburg.  He  there  exhibited  it  to 
*W.  &  Co.,  one  of  the  aforesaid  correspondents,  having  pre-  r^.Koo 
viously  altered  the  sum  from  210/.  to  5,210/.  and  then  drew  on  L 
L.  &  Co.,  for,  and  obtained,  large  amounts  far  exceeding  210/.  These 
drafts  were  forwarded  by  W.  &  Co.  to  L.  &  Co.,  who  refused  to  honor 
them.  The  learned  judge  (Parke,  B.)  asked  the  jury  whether,  although 
the  prisoner's  immediate  object  was  to  cheat  W.  &  Co.,  he  did  not  also 
Inean  that  they  or  their  correspondents,  or  the  indorsers  from  them, 
should  present  these  unauthorized  drafts,  and  obtain  payment  of  them 
from  L.  &  Co.,  and  the  jury  found  that  he  did  so  intend.  The  case 
was  reserved,  and  the  court  held  that,  even  if  L.  &  Co.  had  paid  the 
cheques,  no  offence  would  have  been  committed  by  the  prisoner  within 
the  statute  ;  that  his  act  was  complete  at  St.  Petersburg,  and  for  what 
took  place  afterwards  he  was  not  criminally  responsible.  K,.  v.  Gar- 
rett, 1  Dears.  C.  C.  232.  See  "Greaves'  Criminal  Statutes,"  p.  136, 
2  Russ.  on  Cr.  525,  note  (d),  5th  ed.,  where  it  is  said  that  this  case 
would  be  met  by  the  section  of  the  act  above  alluded  to. 

Obtaining  amounting  to  larceny.  Sometimes  the  obtaining 
amounts  to  a  taking  sufficient  to  constitute  the  offence  of  larceny.  See 
post,  tit.  "Larceny."  By  the  24  &  25  Yict.  c.  96,  s.  88  {vide  ante,  p. 
498),  if  it  appears  on  the  trial  that  the  defendant  obtained  the  property 
in  question  in  any  such  manner  as  to  amount  in  law  to  larceny,  he 
shall  not,  by  reason  thereof,  be  entitled  to  be  acquitted  of  such  misde- 
meanor. In  all  cases,  therefore,  where  it  is  doubtful  whether,  in  point 
of  law,  the  offence  is  larceny  or  a  misdemeanor,  the  safest  course  is  to 
indict  the  party  as  for  a  misdemeanor  ;  for  should  it  appear  upon  an 
indictment  for  larceny,  that  the  offence  is  in  fact,  that  of  obtaining 
money,  etc.,  under  false  pretences,  the  prisoner  must  be  acquitted.  If 
the  facts  proved  amount  to  larceny,  still  the  false  pretences  must  be 
proved  as  laid,  for  it  is  the  misdemeanor  which  is  charged,  and  which 
he  must  be  proved  to  have  committed.  R.  v.  Bulmer,  L.  &  C.  482. 
See  also  R.  v.  Shott,  3  C.  &  K.  206,  post,  tit.  "  Rape."  As  to^  the 
distinction  between  false  pretences  and  larceny,  see  tit.  "  Larceny." 

Obtaining  by  means  of  a  forged  document.  It  was  formerly  the 
law,  that  where  goods  were  obtained  by  false  representation,  but  that 
representation  was  in  writing,  and  amounted  to  a  warrant  or  order  for 
the  payment  of  money  or  delivery  of  goods,  so  as  to  constitute  a  for- 
gery, the  offender  must  be  indicted  for  the  forgery,  and  could  not  be 
convicted  of  obtaining  the  property  by  false  pretences.     R.  v.  Evans, 


654  FALSE   PRETENCES. 

5  C.  &  P.  553,  24  E.  C.  L. ;  R.  v.  Anderson,  2  Moo.  &  R.  469  ;  R. 
V.  Tucler,  1  Den.  C.  C.  325.  But  now  by  the  14  &  15  Vict.  c.  100, 
s.  12,  any  person  tried  for  misdemeanor  is  not  to  be  acquitted  of  the 
misdemeanor  when  duly  proved  if  the  offence  turn  out  to  be  felony. 
See  supra. 

2.  THE  NATUEE  OF  THE  PRETENCE. 

Existing  fact.  The  false  pretence  laid  in  the  indictment  must  be 
of  some  bycgone  or  existino;  fact  and  not  of  some  future  event,  or  a 
mere  promise.  See  II.  v.  Welman,  Dears.  C.  C.  188,  per  Jervis,  C.  J.' 
-.  *  Where  the  four  prisoners  came  to  the  prosecutor  representing 
-I  that  they  had  betted  that  a  person  named  Lewis  should  walk  a 
certain  distance  within  a  certain  time,  and  that  they  should  probably 
win,  and  thus  obtained  money  from  the  prosecutor  towards  the  bet ;  it 
was  objected  that,  although  the  representation  of  a  thing  past  or  pres- 
ent, against  which  caution  cannot  guard,  may  be  within  the  statute  (30 
Geo.  2,  c.  24,  now  repealed),  yet  if  it  be  the  representation  of  some 
future  transaction  respecting  which  inquiries  may  be  made,  it  is  not  an 
indictable  offence,  but  the  subject  only  of  a  civil  remedy.  The  Court 
of  King's  Bench,  however,  were  of  opinion  that  the  false  pretences 
were  within  the  statute.  R.  v.  Young,  3  T.  R.  98.  It  is  to  be  ob- 
served that  the  pretence  of  having  made  a  bet  was  a  pretence  of  an 
existing  fact. 

Where  the  prisoner  falsely  pretended  that  he  had  got  to  pay  his  rent 
when  in  fact  he  did  not  mean  to  pay  it,  but  intended  to  appropriate  the 
money  to  his  own  purposes,  it  was  held  that  this  was  not  a  false  pre- 
tence of  an  existing  fact.     R.  v.  Lee,  Id.  &  C  309. 

Where  the  indictment  alleged  that  the  defendant  falsely  pretended 
that  she  had  the  power  to  bring  back  A.'s  husband  over  hedges  and 
ditches,  it  was  held  that  this  was  not  a  mere  promise,  but  was  a  false 
pretence  Avithin  the  statute.  R.  v.  Giles,  L.  &  C.  502 ;  34  L.  J.,  M. 
C.  50.  The  prisoner  obtained  money  by  representing  that  a  new 
directory  which  W.  &  Co.  were  getting  up  was  about  to  be  published, 
whereas  in  fact  W.  &  Co.  were  not  doing  so ;  and  it  was  held  that 
this  was  a  misrepresentation  of  an  existing  fact.  R.  v.  Speed,  15  Cox, 
C.  C.  R.  24  ;  R.  V.  Taylor,  15  Cox,  C.  C.  265,  268.^ 

Where  the  indictment  alleged  that  the  prisoner  pretended  to  Hen- 
rietta Pond,  who  then  lived  at  Madame  Temple's,  and  acted  as  her 
representative,  that  she  was  to  give  10s.  to  one  Clerk,  and  that  Madame 
Temple  was  going  to  allow  Clerk  10s.  a  week,  it  was  held  that  it  did 
not  sufficiently  appear  from  these  averments  that  there  was  any  false 
pretence  as  to  an  existing  fact.  R.  v.  Henshaw,  L.  &  C.  444 ;  33  L. 
J.,  M.  C.  132. 

^  A  mere  promise  in  the  future  will  not  sustain  the  action.  State  v.  Haines,  23  S. 
C.  170. 

'  An  indictment  for  obtaining  money  on  false  pretences  is  sustained  by  evidence  that 
defendant  induced  A.  to  purchase  an  interest  in  a  concern  which  did  not  exist.  Com- 
monwealth V.  Blood,  8  Crim.  Law  Mag,  89. 


FALSE   PRETENCES.  6o5 


tencc 
Dak 
p.  518. 

Where  the  prisoner  was  charged  with  pretending  that  he  would  tell 
the  prosecutor  where  his  horses  were,  and  so  obtaining  a  soverei<'-n  it 
was  held  that  this  was  not  a  false  pretence  of  an  existing  fact  and 
the  prisoner  ought  to  have  been  indicted  for  ])rctending  that  he  knew 
as  a  fact  Avhere  the  horses  were.  li.  v.  Douglas,  R.  &  M.,  C.  C 
E.  462. 

It  is  a  question  for  the  jury,  whether  the  words  used  by  the  de- 
fendant fairly  conveyed  to  the  prosecutor  a  representation  of  an  exist- 
ing fact.  It  is  for  the  judge  to  decide  whether  they  are  ca})al)le  of 
such  an  interpretation,  and  if  they  are,  it  is  for  the  jury  to  decide 
whether  in  fact  thev  were  so  intended.  R.  v.  Cooper,  2  Q.  B.  D.  510  : 
46  L.  J.,  M.  C.  219. 

Combination  of  several  false  statements.  Very  oflen  the  prisoner 
has  made  a  series  of  false  statements,  some  of  which  are  false  pretences 
of  existing  facts  and  some  were  promises  or  exaggerated  statements. 
R.  V.  Jennison,  infra,  p.  506. 

The  third  count  of  the  indictment  charged  the  defendant  with 
*having  falsely  pretended  to  A.  C.  that  he  was  an  unmarried  r^rritr 
man  and  having  thereby  obtained  a  promise  of  marriage  from  L 
the  said  A.  C;  that  she  refused  to  marry  the  defendant,  and  that  he 
falsely  pretended,  at  the  time  of  such  refusal,  that  he  was  an  unmar- 
ried man,  and  entitled  to  bring  an  action  against  her  for  the  breach  of 
promise  of  marriage,  by  which  means  he  obtained  from  her  100^. 
Whereas,  in  truth,  etc.,  he  was  not  an  unmarried  man,  and  not  entitled 
to  maintain  an  action  for  the  breach  of  promise  of  marriage  against 
her.  The  fact  that  the  prisoner  was  a  married  man  was  proved ;  and 
the  prosecutrix  stated  that  she  being  a  single  woman,  and  possessed  of 
considerable  property,  the  prisoner  had  paid  his  addresses  to  her,  and 
that  she  had  consented  to  marry  him  ;  she  being  ignorant,  at  the  time, 
that  he  was  already  married.  She  further  stated  that,  after  promising 
to  marry  the  prisoner,  she  changed  her  mind,  and  wished  "to  be  off" 
the  match  ;  that  she  intimated  as  much  to  the  prisoner,  and  that  he, 
thereu]3on,  threatened  her  with  an  action  at  law  for  breach  of  promise 
of  marriage,  and,  he  added,  that  by  such  proceedings  he  could  take 
half  her  fortune  from  her  ;  and  that  she,  believing  that  he  could  and 
would  carry  his  threat  into  effect,  and  in  order  to  induce  him  to  re- 
frain from  doing  so,  agreed  to  pay,  and  did  pay  him  the  sum  of  money. 
The  money  was  paid  and  received  on  a  written  stipulation  (produced 
at  the  trial)  that,  in  consideration  of  such  payment,  he  (the  prisoner) 
would  forego  proceedings  at  law  against  the  prosecutrix  for  the  promise 
of  marriage  broken  by  her.  She  stated,  on  cross-examination,  that, 
but  for  the  prisoner's  threat  of  bringing  an  action,  she  would  not  have 
paid  the  money ;  and  that  she  was  induced  by  such  threat  to  pay  it ; 
and  she  added  that,  had  she  known  that  the  prisoner  was  a  married 


656  FALSE   PRETENCES. 

man  she  would  not  have  paid  the  money.  Lord  Denman,  C.  J., 
allowed  the  case  to  proceed,  notwithstanding  an  objection  rai'-od  to  the 
snfficiency  of  the  evidence.  At  the  close  of  the  case,  his  lordship  left 
it  to  the  jury  to  say,  whether  the  money  was,  in  fact,  obtained  by  the 
false  pretence  that  the  prisoner  was  single,  and  a  verdict  of  ^'Guilty" 
Avas  returned.  On  the  following  day  his  loixlship  intimated  that  he 
had  conferred  Avith  Mr.  Justice  Maule,  and  that  they  were  both  clearly 
of  opinion  that  there  was  evidence  to  go  to  the  jury  that  the  money 
was  obtained  by  the  false  pretence  that  the  prisoner  Avas  a  single  man, 
and  in  a  condition  to  intermarry  with  the  prosecuti'ix ;  and  that  Mr. 
Justice  Maale  was  further  of  opinion  that  there  was  also  evidence  of 
the  money  having  been  obtained  by  the  false  pretence  of  the  prisoner, 
that  he  Avas  entitled  to  maintain  an  action  for  breach  of  promise  of 
marriage  ;  and  that  such  latter  false  pretence  Avas  a  sufficient  false  pre- 
tence within  the  statute.  R.  v.  Copeland,  C.  &  Mar.  516,  88,  41  E. 
C.  L. 

In  R.  V.  Johnston,  2  Moo.  C.  C.  255,  the  indictment  was  that  the 
prisoner  pretended  to  H.  G.  H.  that  he  intended  to  marry  her  on  the 
8th  day  of  February,  and  that  he  had  purchased  a  suit  of  clothes  for 
the  Avedding.  and  that  he  Avanted  the  sum  of  41.  to  pay  for  the  same, 
by  which  said  false  pretences  he  obtained  from  the  said  H.  G.  H.  41. 
with  intent  to  cheat  and  defraud  her  of  the  same.  To  support  this 
indictment,  it  Avas  proved  that  the  prisoner  paid  his  addresses  to 
H.  G.  H.,  and  that  the  banns  were  regularly  published  in  church  Avith 
his  sanction.  That  after  the  publication  of  both  banns,  the  prisoner 
met  the  said  H.  G.  H.  at  a  draper's  shop  by  appointment,  in  order 
that  he  might  there  buy  a  suit  of  clothes  for  41.,  and  asked  her  for 
41.  to  enable  him  to  pay  for  them.  That  she  accordingly  gave  him 
*f^npl  *^^'  ^'°^'  ^^^^^  purpose.  The  learned  Judge  (Rolfe,  B.)  doubted 
-"  A\diether  the  pretence  stated  was  one  on  which  a  conA'iction 
could  take  place,  and  reserved  the  point.  The  judges  held  the  con- 
viction Avrong.  Though  the  evidence  in  this  case  to  support  the 
court  AA'as  Aveak,  yet  it  certainly  seems  doubtful  whether  the  count 
Avas  bad.  See  the  case  of  R.  v.  Coj)eland,  fnipra,  and  R.  v.  Jennison, 
infra. 

Where  the  defendant  had  falsely  represented  that  he  was  a  single 
man,  and  that  he  Avould  go  to  LiA^erpool  to  furnish  a  house  Avith  the 
money  Avhich  he  demanded,  and  that  he  Avould  return  and  marry  the 
prosecutrix,  it  Avas  held  that  the  statement  of  his  being  an  unmarried 
man  Avas  a  false  pretence  of  an  existing  fact,  and  AA'as  essential,  for 
Avithout  it  he  Avould  not  haA'c  obtained  the  money,  and  that  although 
it  Avas  united  Avith  tAA'O  promises,  neither  of  Avhich  alone  Avould  have 
supported  the  conviction,  yet  the  conviction  AA'as  right.  R.  v.  Jenni- 
son, L.  &  C.  157 ;  31  L.  J.,  M.  C.  147. 

The  prisoner  falsely  told  the  prosecutrix  that  she  kept  a  shop  at  N., 
and  promised  the  prosecutrix  that  if  she  lent  her  half  a  soA'creign  she 
should  go  home  with  her  until  she  got  a  situation,  and  that  the  money 
should  be  paid  as  soon  as  they  arrived  home.  Tlie  ]irosccutrix  lent 
her  the  half-sovereign,  and  the  prisoner  immediately  decamped.     The 


FALSE   PRETENCES.  657 

jury  found  tliat  the  prosecutrix  parted  with  the  money  under  the  be- 
lief that  the  j)risoner  kept  a  shop  at  N.,  and  that  she  (the  prosecutrix) 
should  ImA-e  the  money  when  they  arrived  home.  It  was  held  that 
the  jH-isoner  was  rightly  convicted.  R.  v.  Fry,  Dear.  &  V).  C.  C.  449  ; 
27  L.  J.,  M.  C.  68.  So  Avhen  the  prisoner'  pretended  that  he  had 
bought  some  skins  and  liad  paid  ten  shillings  on  them,  and  wanted 
4/f.  10s.  to  enable  him  to  fetch  them  away ;  all  whicli  was  false,  but 
the  prosecutrix,  believing  it  to  be  true,  lent  him  the  ten  shillings, 
with  which  he  decamped  ;  this  was  held  to  be  obtaining  money 
by  false  pretences.  R.  v.  AVest,  27  L.  J.,  M.  C.  227  :  Dears.  & 
B.  C.  C.  R.  577. 

If  the  prisoner  makes  several  statements  which  are  true,  and  which 
influence  the  mind  of  the  prosecutor,  or  if  the  prosecutor's  mind  is 
influenced  by  other  circumstances,  yet  if  the  prisoner  makes  one  false 
statement  Avhich  materially  aifects  the  mind  of  the  prosecutor,  that 
is  sufficient  to  support  a  conviction.  R.  v.  English,  12  Cox,  C.  C. 
171  ;  R.  V.  Lince,  12  Cox,  C.  C.  R.  451.  See  also  R.  v.  Hewgill, 
Dears.  C.  C.  315. 

It  seems  that  if  the  indictment  alleges  two  circumstances  conducing 
to  the  fraud,  and  the  jury  find  only  a  general  verdict  of  guilty,  and  as 
to  one  of  the  circumstances  the  allegation  in  the  indictment  does  not 
disclose  a  "false  pretence,"  the  indictment  will  be  bad  on  a  writ  of 
error.  R.  v.  Wickham,  10  Ad.  &  Ell.  34,  37  E.  C.  L.;  but  if  the 
jury  had  found  specially  that  the  false  pretence,  which  was  properly 
laid,  had  been  proved,  the  conviction  would  have  been  good.  See  this 
case  cited  infra,  and  see  j)ost,  p.  515. 

Pretence  made  by  acts,  not  words.  Very  frequently  false  pre- 
tences have  been  made  by  means  of  acts  calculated  to  deceive,  for 
instance,  as  by  assuming  a  character  or  an  appearance  of  position  and 
credit,  or  by  issuing  documents  purporting  to  be  of  some  value.^ 

So  where  a  person  at  Oxford,  who  was  not  a  member  of  the  uni- 
versity, went  to  a  shop  for  the  purpose  of  fraud,  wearing  a  commoner's 
gown  and  cap,  and  obtained  goods  ;  this  was  held  a  sufficient  false 
*pretence  to  satisfy  the  statute,  though  nothing  passed  in  words,  r.^  ^-^.m 
R.  V.  Barnard,  7  C.  &  P.  784,  32  E.  C.  L.  ^ 

The  indictment  stated  that  the  prisoner  falsely  pretended  to  A.  B. 
that  he  was  a  captain  in  the  East  India  Company's  service,  and  that 
a  certain  promissory  note  which  he  then  delivered  to  A.  B.,  was  a 
valuable  security  for  21^,;  by  means  of  which  false  pretences  he  ob- 
tained from  A.  B.  81.  15s.  It  was  held  that  as  it  did  not  appear  but 
that  the  note  was  the  prisoner's  own  note,  or  that  he  knew  it  to  be 
worthless,  there  was  no  sufficient  false  pretence  in  that  respect ;  and 
that,  as  the  two  pretences  were  to  be  taken  together,  the  indictment 
was  bad ;  and  the  judgment  given  upon  it  was  reversed  in  error. 
Wickham  v.  Reg.,  10  Ad.  &  E.  34,  37  E.  C.  L.     And  it  is  said  in 

^  Guilty  intent  may  be  inferred  from  the  commission  of  acts  which  will  inevitably 
deprive  the  owner  of  his  property.  Commonwealth  v.  Schuyler,  1  County  Ct.  Eep. 
(Pa.)  403. 

42 


658  FALSE   PRETENCES. 

R.  V.  West,  Bears.  &  B.  -575,  583,  that  if  the  jury  had  found  that  the 
money  had  been  obtained  by  means  of  the  false  pretence  of  being  a 
captain,  the  conviction  would  have  been  good.  See  also  R.  v.  Gard- 
ner, ante,  p.  501. 

The  case  of  R.  v.  Abbott,  cited  infra,  p.  511,  is  also  a  case  where 
the  i^oods  were  obtained  by  an  acted  false  pretence  in  the  course  of  a 
contract. 

With  respect  to  the  presenting  of  false  cheques  or  notes,  etc.,  the 
following  cases  have  been  decided  : — 

The  j)ris()ner  was  indicted  for  unlawfully  producing  to  A.  B.,  etc., 
of  the  Nottingham  post-office,  a  money  order  for  the  payment  of  one 
pound  to  one  John  Storer,  and  for  unlawfully  pretending  to  the  said 
A.  B.  that  he  was  the  person  named  in  such  order,  with  intent,  etc., 
whereas,  etc.  It  appeared  in  evidence  that  the  prisoner  had  gone  to 
the  post-office,  and  inquired  for  letters  for  John  Story,  whereupon,  by 
mistake,  a  letter  for  John  Storer,  containing  the  money  order  Mas  de- 
livered to  him.  He  remained  a  sufficient  time  to  read  the  letter,  and 
then  presented  the  order  to  A.  B.,  who  desired  him  to  write  his  name 
upon  it,  which  he  did  in  his  real  name,  John  Story,  and  received  the 
money.  The  terms  of  the  letter  clearly  explained,  that  the  order  could 
not  have  been  intended  for  the  prisoner,  who,  on  being  apprehended, 
denied  that  he  had  ever  received  the  money,  but  afterwards  assigned 
the  want  of  cash  as  the  reason  of  his  conduct.  Chambre,  J.,  left  it  to 
the  jury  to  find  against  the  prisoner,  if  they  were  satisfied  that  he  had, 
by  his  conduct,  fraudulently  assumed  a  character  which  did  not  belong 
to  him,  although  he  made  no  false  assertions.  The  jury  found  him 
guilty.  The  judges  held  the  conviction  right,  being  of  opinion,  1st, 
that  the  prisoner  writing  his  own  name  on  the  order,  did  not  amount  to 
a  forgery  ;  and  2ndly,  that  by  presenting  the  order  for  payment,  and 
signing  it  at  the  post-office,  he  was  guilty  of  obtaining  money  by  a 
false  pretence  within  the  statute.  R.  v.  Story,  Russ.  &  Ry.  81.  See 
R.  V.  Freeth,  Id.  127. 

If  a  person  with  intent  to  defraud  gives  a  cheque  upon  a  banker 
with  whom  he  keeps  no  account,  this  is  a  false  pretence  within  the 
statute.  Where  a  prisoner  was  indicted  for  so  doing,  Bayley,  J.,  said, 
"this  point  has  been  recently  before  the  judges,  and  they  were  all  of 
opinion  that  it  is  an  indictable  offence  fraudulently  to  obtain  goods  by 
giving  in  payment  a  cheque  upon  a  banker  with  whom  the  party 
keeps  no  cash,  and  which  he  knows  will  not  be  paid."  R.  v.  Jack- 
son, 3  Camp.  370.  So  where  the  prisoner  was  charged  with  falsely 
pretending  that  a  post-dated  cheque,  drawn  by  himself  was  a 
good  and  genuine  order  for  25/.,  and  of  the  value  of  25/.,  whereby  he 
obtained  a  watch  and  chain,  the  judges  held  that  the  conviction  was 

*5081  *"S^^*-  ^'  '"'  P^^^^^'  7  C.  &  P.  825,  32  E.  C.  L.;  2  Moo.  C. 
-I  C.  1.  So  where  the  prisoner,  who  formerly  had  an  account  at 
a  bank  drew  cheques  upon  the  bank  and  thereby  obtained  goods,  but 
he  knew  that  the  account  was  virtually  closed,  and  that  his  cheques 
would  not  be  paid.  It  was  held  that  there  was  evidence  of  the  false 
pretence  that  the  cheques  were  good  and  valid  orders  for  the  payment 


FALSE  PRETENCES.  659 

of  their  amount,  and  that  the  prisoner  was  riglitly  convicted.  R  v 
Hazelton,  L.  R.  2  C.  C.  134  ;  44  L.  J.,  M.  C.  11  ;  and  see;  also  R.  v. 
Dowey,  37  L.  J.,  M.  C.  52.  Where  the  prisoner  was  indicted  for  ob- 
taining goods  by  false  pretences  from  several  persons  by  sending  half 
bank  notes,  and  requesting  goods  to  the  value  of  the  entire  noteTto  be 
sent  to  her,  and  by  pretending  that  she  had  in  her  custody  the  corres- 
ponding halves,  and  it  was  proved  that  she  had  not  the  corresponding 
half  notes  in  her  custody,  having,  in  fact,  sent  them  to  other  persons 
with  similar  requests,  it  was  held  by  the  whole  court,  consisting  of 
seven  judges,  that  she  was  rightly  convicted.  R.  v.  Murphy,  13  Cox, 
C.  C.  R.  (Irish),  298.  This  decision  is  directly  contrary  to  a  rnling 
of  Pennefather,  B.,  in  R.  v.  Masterson,  2  Cox,  C.'C.  (Irish),  100,  which 
case  does  not  appear  to  have  been  referred  to  in  R.  v.  Murphy.  See 
2  Russ.  Cri.  551  (l),  5th  ed. 

Fraudulently  offering  a  "flash  note"  in  payment,  under  a  false 
pretence  that  it  is  a  Bank  of  England  note,  is  within  the  statute. 
R.  V.  Coulson  ;  1  Den.  C.  C.  592  ;  19  L.  J„  M.  C.  182  ;  or  the 
note  of  a  bank  which  has  stopped  payment.  R.  v.  Jarman,  14  Cox, 
C.  C.  R.  111. 

False  account  of  wages  paid,  work  done,  weight  delivered,  etc. 

The  prisoner  was  indicted  under  the  30  Geo.  2,  for  obtaining  money 
under  false  pretences.  The  prosecutors  were  clothiers,  and  the  pris- 
oner a  shearman  in  their  service,  and  employed  as  superintendent  to 
keep  an  account  of  the  persons  employed,  and  the  amount  of  their 
wages  and  earnings.  At  the  end  of  each  week  he  was  supplied  with 
money  to  pay  the  different  shearmen  by  the  clerk  of  the  prosecutors, 
who  advanced  to  him  such  sums  as,  according  to  a  written  account  or 
note  delivered  to  him  by  the  prisoner,  were  necessary  to  pay  them. 
The  prisoner  was  not  authorized  to  draw  money  generally  on  account, 
but  merely  for  the  sums  actually  earned  by  the  shearmen  ;  and  the 
clerk  was  not  authorized  to  pay  any  sums,  except  such  as  he  carried 
in,  in  his  note  or  account.  The  prisoner  delivered  to  the  prosecutor's 
clerk  a  note  in  writing,  in  this  form,  "9  Sept.  1796,  44^.  lis.  Od," 
which  was  the  common  form  in  which  he  made  out  the  note.  In  a 
book  in  his  handwriting,  which  it  was  his  business  to  keep,  were  the 
names  of  several  men  who  had  not  been  employed,  who  were  entered 
as  having  earned  dilferent  sums  of  money,  and  also  false  accounts  of 
the  work  done  by  those  who  were  employed,  so  as  to  make  out  the 
sum  of  4:4:1.  lis.  Od.  The  prisoner  being  found  guilty,  on  a  case  re- 
served for  the  opinion  of  the  judges,  it  was  argued  that  the  statute  did 
not  extend  to  cases  where  there  was  a  previous  confidence.  At  first 
there  was  some  diversity  of  opinion  ;  but  finally  they  all  agreed,  that 
if  the  false  pretence  created  the  credit,  the  case  was  within  the  statute. 
They  considered  that  the  defendant  would  not  have  obtained  the 
credit,  but  for  the  false  account  he  had  delivered  in ;  and,  therefore, 
that  he  was  properly  convicted.  The  defendant,  as  was  observed  by 
one  of  the  judges,  was  not  to  have  any  sum  that  he  thought  fit  on 
♦account,  but  only  so  much  as  was  worked  out.  R.  v.  Witch-  r*5Q9 
ell,  2  East,  P.  C.  830.  '■ 


660  FALSE   PRETENCES. 

Falsely  pretending  that  a  certain  quantity  of  v/orlc  has  been  done 
would  be  witliin  the  statute,  but  a  mere  overcharge  for  work  would 
not.  In  an  indictment  for  obtaining  money  by  false  pretences  the  pre- 
tence stated  in  some  of  the  counts  was,  that  the  prisoner  unlawfully, 
knowingly,  and  designedly,  did  falsely  pretend  that  he  having  exe- 
cuted certain  work,  there  was  a  certain  sum  of  money  due  and  owing 
to  him  for  and  on  account  of  the  work,  liy  means  of  wliicli  said  false 
pretence  the  prisoner  did  then  unlawfully  obtain,  etc.,  with  intent 
tiu!ro!n'  them  to  defraud  :  in  other  counts,  the  false  pretences  were 
stated  to  be  that  the  prisoner  did  falsely  pretend  that  the  money  v/as 
due  and  owing.  It  was  proved  that  the  defendant  worked  for  the 
prosecutors  as  a  journeyman,  and  that  the  quantities  of  the  ^^^ork 
done  by  him  for  them  during  each  week  were  entered  in  a  book  kept 
exclusively  for  that  purpose.  The  prices  for  the  work  so  entered  were 
placed  in  a  column  opposite  to  each  quantity  of  work,  and  were  added 
up  on  behalf  of  the  prosecutors  at  the  end  of  each  week.  The  weekly 
t(3tals  of  these  prices  were  entered  by  them  in  this  account  book,  and 
tiie  amount  of  those  totals  was  paid  by  them  to  the  defendant  as  the 
ascertained  sum  of  money  due  to  him  for  work  done  on  the  production 
by  him  of  the  book.  It  was  further  proved  that,  after  these  v>'Cekly 
totals  had  been  entered  as  above,  the  defendant  had  altered  them  into 
larger  amounts,  and  then  had  procured  payments  of  those  larger 
amounts,  and  restored  the  figures  of  the  original  totals.  The  de- 
fendant was  found  guilty.  After  verdict  had  been  recorded,  it  was 
objected  that  the  indictment  did  not  disclose  any  false  pretence  within 
the  meaning  of  the  statute.  Parke,  B.,  "An  indictment  for  false 
pretences  must  disclose  a  false  pretence  of  an  existing  fact.  In  this 
case  there  is  merely  a  fraudulent  claim  in  respect  of  a  quantum 
meyuit  of  the  prisoner's  work  and  labor ;  and  the  indictment  would 
be  supported  by  evidence  that  the  prisoner  made  a  false  estimate  of 
the  value  of  his  work.  I  do  not  think  that  is  an  indictable  offence. 
The  short  ground  of  my  judgment  is,  that  the  indictment  contains 
no  false  statements  of  an  existing  fact.  The  decision  in  R.  i\  Woolley, 
infra,  p.  514,  went  wholly  on  the  facts,  and  the  form  of  the  indictment 
was  not  considered  by  the  court.  In  this  case  the  false  pretence  con- 
sists of  nothing  more  than  what  might  be  mere  matter  of  opinion, 
and  it  would  be  frightful  if  every  person  who  made  an  overcharge 
should  be  liable  to  a  criminal  prosecution."  Wightman,  J.,  Cromp- 
ton,  J.,  and  Crowder,  J.,  all  thought  that  the  indictment  was  defective, 
as  there  was  no  statement  of  a  false  pretence  of  an  existing  fact,  and 
that  the  allegations  might  be  proved  by  evidence  of  a  wrongful  over- 
charge. R.  V.  Oates,  Dears.  C.  C.  459.  By  means  of  a  false  wage- 
sheet  the  prisoner  obtained  from  his  master  a  cheque  for  the  amount 
stated  in  the  sheet  to  pay  the  men's  wages.  The  cheque  was  in- 
formally dra^vn,  and  payment  was  refused  by  the  bank.  The 
prisoner  returned  it  to  his  master,  telling  him  of  the  cause  for  non- 
payment ;  and  the  master  tore  it  up,  and  gave  another,  which  the 
prisoner  cashed,  and  appropriated  the  difference  between  what  was 
really  due  for  wages,  and  what  was  falsely  stated  to  be  due  in  the 


FALSE   PRETENCES.  QQl 

wage-sheet.  It  was  held  tliat  the  false  pretence  was  a  continuing  one, 
and  that  the  second  cheque  Avas  obtained  thereby  equally  with  the 
first.     R.  V.  Greathoad,  14  Cox,  C.  C.  R.  108. 

A  baker  contracted  with  tiie  guardians  of  the  poor  of  a  parish  to 
♦deliver  to  the  out-door  poor,  as  the  guardian  should  direct,  r^^-,^ 
loaves,  each  weighing  31  lbs.,  at  Id.  a  loaf  The  course  of  busi-  •-  '^ ^ 
ness  was  for  the  relieving  officer  to  give  tickets  to  the  out-door  poor,  upon 
which  was  specified  the  number  of  loaves  they  Nvere  to  receive.  Upon 
receiving  their  loaves,  the  poor  persons  gave  up  their  tickets  to  the 
baker,  and  he,  in  the  ensuing  week,  returned  them  to  the  relieviu"-- 
officer  with  a  note  stating  the  wliole  niunber  sent.  He  was  then 
credited  in  an  account  between  him  and  the  guardians  accordingly,  and 
the  account  was  paid  at  certain  specified  times.  The  baker  knowingly 
delivered  three  loaves  of  less  weight  than  3i  lbs.,  but  charged  them  to 
the  guardians  as  of  full  weight :  and  it  was  held  that  he  was  properly 
convicted  of  attempting  to  obtain  one  shilling,  the  value  of  the  differ- 
ence in  weight,  from  the  guardians  by  false  pretences.  R.  v.  Eagleton, 
1  Dears.  C.'^C.  515;  25  L.  J.,  M.  C.  39.  See  this  case,  ante,  p.  396. 
In  this  case,  Parke,  B.,  in  delivering  the  judgment  of  the  court,  said, 
"It  was  contended  for  the  prisoner  that  the  indictment  for  attempting 
to  obtain  money  by  false  pretences  could  not  be  supported,  because  the 
offence  of  obtaining  money  under  false  pretences  w^as  committed  only 
when  the  money  was  obtained  wholly  without  consideration,  and  the 
offence  was  analogous  to  larceny,  of  which  the  prisoner  might,  by  stat. 
7  &  8  Geo.  4,  c.  29,  s.  53  (now  repealed),  be  convicted  in  case  the 
offence  should  appear  on  the  trial  to  be  larceny.  There  are  many 
cases,  no  doubt,  as  is  mentioned  in  that  section,  in  which  the  distinc- 
tion is  very  subtle  between  the  misdemeanor  of  obtaining  money  under 
false  pretences  and  larceny,  and  it  was  very  proper  to  make  that  pro- 
vision in  the  statute ;  but  it  does  not  follow  that  all  the  cases  of  ob- 
taining money  by  false  pretences  are  of  that  description.  But  it  was 
strongly  contended  that  the  statute  against  obtaining  money  by  false  pre- 
tences applied  to  no  cases  where  there  was  some  bargain  or  consideration 
for  giving  money,  and  so  some  cause  for  the  giving  other  than  the  false 
pretence ;  as  where  goods  were  sold  under  a  false  representation  of  the 
quality  or  value,  and  the  purchaser  had  the  commodity ;  other-vvise  the 
range  of  indictable  offences  would  be  greatly  extended,  and  breaches 
of  contract  made  the  ground  of  criminal  proceedings.  If  this  had 
been  the  sale  of  bread  to  the  prosecutor.i  vnth  a  false  representation  of 
the  weight,  and  an  attempt  thereby  to  receive  a  larger  price  than  was 
really  due,  we  should  have  had  to  decide  whether  an  indictable  offence 
had  iDcen  thereby  committed,  and  should  have  had  to  consider  the  case 
of  R.  V.  Kenrick,  infra,  and  also  tliat  of  R.  v.  Abbott,  infra,  p.  511, 
decided  upon  the  authority  of  R.  v.  Kenrick.  In  all  these  cases,  the 
prosecutor  did  not  part,  with  his  money  merely  on  account  of  the  false 
pretences,  but  principally  because  he  had  a  consideration  for  it  in  the 
property  vested  in  him  by  the  contract.  But  this  is  not  the  case  of  the 
sale  of  goods  by  a  false  pretence  of  their  weight,  it  is  an  attempt  to 
obtain  money  by  the  false  and  fraudulent  representation  of  an  antece- 


6G2  FALSE   PRETENCES. 

dent  fact,  viz.,  that  a  greater  number  of  pounds  of  bread  had  been 
delivered  than  had  been  actually  delivered,  and  that  representation 
made  with  a  view  of  obtaining  as  many  sums  of  twopence  as  the  lunn- 
bcr  of  pounds  falsely  pretended  to  have  been  furnished  amount  to.  In 
this  respect  the  case  exactly  resembles  that  of  R.  v.  Witchell,  supra, 
where  the  prisoner  obtained  money  by  the  iiilse  pretence  that  certain 
workmen  had  earned  more  than  they  really  had,  and  there  since  are 
cases  of  similar  convictions  where  the  prisoner  ialsely  stated  the  (|uan- 
tity  of  work  which  ho  had  done  according  to  which  he  was  to  be  paid  ; 
^r--.-.n  *we  therefore  think  that  the  indictment  would  be  maintainable 
J    if  the  money  had  been  paid. 

False  statement  as  to  quality,  quantity,  or  weight  in  course  of 
a  contract — puff.  1.  As  to  quality. — The  fourth  count  of  an  indict- 
ment stated,  that  the  defendants  unlawfnlly,  knowingly,  and  design- 
edly did  falsely  ])retcnd  to  G.  W.  F.,  that  a  phaeton,  mare,  and  geld- 
ing, which  the  dexendants  oifered  him  for  sale,  had  been  the  property 
of  a  lady  then  deceased,  and  were  then  the  property  of  her  sister,  and 
were  not  the  property  of  any  horsed ealer,  and  that  the  mare  and  geld- 
ing were  then  respectively  quiet  to  ride  and  drive.  Evidence  was 
given  that  the  bargain  had  been  made  by  G.  W.  F.  in  consequence  of 
his  belief  in  these  representations  :  that  they  were  false;  and  that  the 
horses  were  vicious.  The  jjrisoner  was  convicted,  and  a  rule  Avas  ob- 
tained for  arresting  the  judgment  on  the  ground  that  the  indictment 
was  insufficient,  and  on  other  grounds  ;  as  to  this  point  Lord  Den  man 
said,  in  delivering  the  judgment  of  the  court,  "a  general  question 
seems  here  to  be  raised,  whether,  if  money  be  obtained  though  the 
medium  of  a  contract  between  the  defendant  and  the  party  defrauded, 
the  charge  of  false  pretences  can  be  maintained.  Questions  approach- 
ing this  have  been  raised  in  the  criminal  courts.  With  some  plausi- 
bility the  tiling  obtained  though  the  false  pretence  may  be  said  to  be 
the  contract,  and  not  the  money  which  is  paid  in  fulfilment  of  it,  and 
which  the  party  is  probably  by  its  terms  liable  to  repay."  His 
Lordship  then  referred  to  a  case  of  R.  v.  Adamson,  2  Moo.  C.  C  286, 
and  concluded  thus,  "  We  think  that  in  this  case  the  two  ingre- 
dients of  the  offence  of  obtaining  money  under  false  pretences  were 
proved  by  the  evidence.  The  pretences  were  false ;  and  the  money 
was  obtained  by  their  means.  The  count  therefore  is  good."  R.  v. 
Kenrick,  5  Q.  B.  49,  31  E.  C.  L.  The  indictment  charged  that  the 
prisoner  having  in  his  possession  divers  lbs.  weight  of  cheese  of  little 
value  and  of  inferior  quality,  and  contriving  and  intending  to  cause 
it  to  be  believed  that  said  cheese  was  of  good  flavor  and  of  excellent 
quality,  and  also  having  in  his  possession  divers  pieces  of  cheese  called 
''tasters"  of  good  flavor,  taste,  and  quality,  and  contriving  and  in- 
tending to  cheat  one  W.  B,,  unlawfully  and  knowingly  did  falsely 
pretend  to  the  said  W.  B.,  that  the  said  pieces  of  cheese  called  "tast- 
ers," which  he  the  said  prisoner  then  and  there  delivered  to  the  said 
W.  R,  were  part  of  the  said  cheese  then  oifered  for  sale.  It  was 
proved  at  the  trial  that  the  prisoner  kept  a  cheese  stall  at  F.,  and  sold 


FALSE   PRETENCES.  GG3 

to  W.  B.  a  quantity  of  cheese  at  6|d.  per  lb.  At  the  time  the  j)ri8- 
oner  offered  the  cheese  for  .sale,  he  bored  two  of  them  with  an  iron 
scoop,  and  produced  a  piece  of  cheese  which  is  called  a  "taster"  fur 
the  prosecutor  to  taste,  and  the  prosecutor  did  so.  The  cheese,  liow- 
ever,  which  he^  so  tasted,  had  nut  in  fact  been  extracted  irom  the 
cheese  from  which  it  was  pretended,  but  was  a  taster  of  another  and 
superior  kind  of  cheese,  which  the  prisoner  had  privilv  inserted  into 
the  top  of  the  scoop.  The  prosecutor  would  not  have  l)ou<,dit  the 
cheese  unless  he  had  believed  that  the  taster  had  been  extracted  irom 
it.  The  cheese  which  had  been  so  bought  was  delivered  to  tlie  j)rose- 
cutor  and  he  retained  it.  It  was  of  a  very  inferior  kind.  This  and 
two  other  similar  cases  were  reserved  for  the  opinion  of  the  judges, 
and  they  held  the  convictions  right,  on  the  authority  of  R.  v.  Kenrick, 
supra;  R.  v.  Abbott,  1  Den.  C.  C.  273.  See  also  R.  v.  (loss,  29 
L.  J.,  M.  C.  86,  pod,  p.  514,  where  the  facts  were  almost  identical. 

*The  prisoner  called  at  a  pawnbroker's  shop  with  a  chain,  r^-io 
on  which  he  asked  for  an  advance  of  ten  shillings.  The  pawn-  L  '^  -■ 
broker  asked  if  the  chain  was  silver;  the  prisoner  replied  that  it  Avas. 
The  pawnbroker  then  examined  the  chain,  and  tested  it  with  an  acud, 
which  the  chain  withstood.  The  pawnbroker  then  lent  the  prisoner 
ten  shillings  on  the  chain,  which  he  took  as  a  pledge.  He  paid  the 
money,  relying  on  his  own  examination  and  test,  and  without  ])lacing 
any  reliance  on  the  statement  of  the  prisoner.  Evidence  was  admitted 
to  prove  that  the  prisoner  a  few  days  afterwards  offered  a  chain  similar 
in  appearance  to  another  pawnbroker,  requesting  him  to  advance  ten 
shillings  upon  it.  Twenty-six  similar  chains  were  found  on  the  person 
of  the  prisoner  when  he  was  apprehended.  The  chains  were  worth  a 
farthing  an  ounce,  being  much  less  than  ten  shillings  each.  The 
recorder  told  the  jury  that,  though  they  could  not  convict  of  the 
offence  charged  in  the  indictment,  they  might  convict  the  prisoner  of 
an  attempt,  which  they  did.  The  judges,  upon  the  authority  of  R.  v. 
Abbott,  supra,  upheld  the  conviction ;  Jervis,  C.  J.,  apparently,  being 
the  only  one  who  approved  of  the  decision  ;  Parke,  B.,  who  was 
present  at  the  argument,  but  gave  no  judgment,  was  very  strong 
against  the  conviction.     R.  v.  Roebuck,  25  L.  J.,  M.  C.  101. 

The  prisoner  induced  a  pawnbroker  to  advance  him  money  on  some 
spoons  which  he  represented  as  silver-plated  spoons,  which  had  as 
much  silver  on  them  as  "Elkinton's  A"  (known  class  of  plated 
spoon),  and  that  the  foundations  were  of  the  best  material.  The 
spoons  were  plated  with  silver,  but  were  to  the  prisoner's  knowledge  of 
very  inferior  quality,  and  not  worth  the  money  advanced  on  them.  It 
was  held  by  the  court  (dissenfiente  Willes,  J.,  and  dubitanie  Bramwell, 
J.),  that  this  was  not  an  indictable  offence.  R.  v.  Bryan,  Pears.  & 
B.  C.  C.  265  ;  26  L.  J.,  M.  C.  84.  As  was  pointed  out  by  Erie,  C.  J., 
in  R.  V.  Goss,  infra,  the  judgment  of  Willes,  J.  (which  was  very 
elaborate,  and  appears  to  be  that  also  of  Jervis,  C.  J.),  proceeded  not 
so  much  on  a  different  view  of  the  law,  but  on  a  difPerent  May  of 
viewing  the  facts.  And  the  following  remarks  of  Willes,  J.,  have 
been  frequently  alluded  to  as  particularly  lucid  and  applicable  to  cases 


6(54  FALSE   PRETENCES. 

of  this  kind.     He  says,  "  if  the  matter  was  a  simple  commendation  of 
tlie  goods  without  any  specific  falsehood  of  what  they  were  :  if  it  was 
entirely  a  case  of  one  person  dealing  with  another  in  the  way  of  busi- 
ness, who  might  expect  to  pay  the  price  of  the  articles  which  were 
otfered  for  the  purpose  of  pledge  or  sale,  and  knew  what  they  were,  I 
apprehend  it  would  easily  have  been  disposed  of  by  the  jury,  who 
were  to  pass  an  opinion  upon  the  subject,  acting  as  persons  of  conmion 
sense  and  knowledge  of  the  world,  and  abstaining  from  coming  to  any 
conclusion  as  that  praise  of  that  kind  should  have  the  eifect  of  making 
the  party  resorting  to  it,  guilty  of  obtaining  money  by  a  false  pre- 
tence.    I  say  nothing  on  the  effect  of  a  simple  exaggeration  except 
that  it  appears  to  me  that  it  would  be  a  question  for  the  jury,  in  each 
case,  whether  the  matter  was  such  ordinary  praise  of  the  goods  (dolus 
bonus)  as  that  a  person  ought  not  to  be  taken  in  by  it,  or  whether  it 
was  a  representation  of  a  specific  fact  material  to  the  contract,  and 
intended  to  defraud,  and  did  defraud,  and  by  which  the  money  in 
question  was    obtained.       *     *     *       j^    is    said    that  the  effect  of 
establishing  a  rule,  such  as    that   for    whicli    I    contend,  wonld  be 
to  interfere  with  trade  ;   no   doubt  it  would,  and  I  think  it   ought 
^^-,0-,   to  prevent   trade    being  carried  on  in  the  way  in  which  *it 
J    is  said  to  be  carried  on.  *  *  *     I  am  far   from  wishing   to 
interfere   with   the   rule   as   to   simple  commendation   or    praise   of 
the  articles  which  are  sold,  on  the  one  hand,  or  to  fair  cheapening  on 
the  other  ;  those  are  things  persons  may  expect  to  meet  with  in  the 
ordinary  and  usual  course  of  trade ;  but  I  cannot  help  thinking  that 
peoi)le  ought  to  be  protected  from  any  such  acts,  as  those  I  have  re- 
ferred to,  being  resorted  to  for  the  purpose  and  with  intent  to  cheat 
and  defraud  purchasers'of  their  money,  and  tradesmen  of  their  goods. 
If  the  result  of  it  would  be  to  multiply  prosecutions,  that  must  be 
because  we  live  in  an  age  in  which  fraud  is  multiplied  to  a  very  great 
extent,  and  amongst  others  in  this  form.     I  agree  in  what  the  late  C. 
J.  Jervis  said,  as  peculiarly  applicable  to  such  a  supposed  state,  though 
I  hope  not  to  ordinary  trade,  that  if  there  be  such  a  commerce  as  re- 
quires to  be  protected  by  the  statute  being  limited  in  the  mode  pro- 
posed, it  ought  to  be  made  honest  and  conform  to  the  law,  and  not  the 
law  bent  to  the  purpose  of  allowing  fraudulent  commerce  to  go  on." 
R.  V.  Bryan,  supra. 

In  R.  V.  Ardley,  L.  R.  1  C.  C.  R.  301  ;  40  L.  J.,  M.  C.  85,  the 
case  of  R.  v.  Bryan,  sup7'a,  is  commented  upon,  and  it  was  pointed  out 
that  if  the  prisoner  in  that  case  had  represented  the  spoons  as  being 
in  fact  Elkington's  manufacture  when  he  knew  they  were  not,  he 
would  have  been  rightly  convicted,  and  in  the  present  case,  where  the 
jury  had  found  that  the  prisoner  represented  a  chain  as  in  fact  15-carat 
gold  when  he  knew  in  fact  tiiat  it  was  nothing  of  the  sort,  he  was 
held  rightly  convicted.  Where  the  prisoner  was  indicted  for  falsely 
pretending  that  he  was  in  the  tea  trade  in  Leicester,  and  that  he  had 
good  tea  for  sale,  and  that  he  did  sell  16  packages  which  he  falsely 
pretended  were  composed  of  good  tea,  and  it  was  proved  that  he  A\\as 
not  in  the  tea  trade  in  Leicester,  and  that  the  mixture  he  sold  was  not 


FALSE   PRETENCES.  665 

tea  at  all,  he  was  held  to  be  rightly  convicted.     Kelly,  C.  B.  in  de- 
livering the  judgment  of  the  court  said,  ''To  call   tea  good   when   it 
was  not  good  might    be    mere    commendation,  and    not  the  i^uhjcct 
of  a  criminal  prosecution."     R,  v.  Foster,  2  Q.  B.  D.  301  •  4(j  L  J 
M.  C.  128.  '  ■    '' 

A  false  representation  of  the  value  of  a  business  upon  the  sale  of 
the  goodwill  will  not,  it  seems,  support  an  indictment  for  ol)taining 
money  by  false  pretences,  nor  will  such  a  representatiim  when  made 
for  the  purpose  of  obtaining  a  deposit  from  a  proposed  assistant  in  the 
business.  R.  v.  Williamson,  11  Cox,  C.  C.  328.  But  whore  it  is  not 
a  question  of  degree,  and  the  fact  is  there  is  no  business  M-hatever, 
there  is  no  doubt  that  the  prisoner  may  be  convicted.  R.  v.  Crab,  11 
Cox,  C.  C.  85,  C.  C.  R. 

2.  As  to  quantity  or  weight. — The  prisoner  having  agreed  with  the 
prosecutrix  to  sell  and  deliver  a  load  of  coal  at  a  certain  ])rice  per  ewt., 
delivered  a  load  which  he  knew  to  be  only  14  cwt,,  but  which  he 
falsely  and  fraudulently  pretended  to  be  1 8  cwt.,  stating  that  it  had 
been  weighed  at  the  colliery  ;  and  he  produced  a  ticket  which  showed 
the  weight  to  be  18  cwt.,  and  which  ticket  he  said  he  had  made  out 
himself  when  the  coal  was  weighed,  and  he  thereupon  received  the 
money  for  18  cwt.  It  was  held  that  upon  this  evidence  the  prisoner 
Avas  properly  convicted  of  obtaining  the  money  of  the  prosecutrix  by 
false  pretences.  R.  v.  Sherwood,  Dears.  &  B.  C.  C.  251  ;  26  L.  J., 
M.  C.  8.  The  attention  of  the  court  was  drawn  to  R.  v.  Reed,  7  C.  & 
P.  848,  32  E.  C.  L.,  a  precisely  similar  case,  in  which  the  twelve  judges 
held  the  other  way,  but  it  was  considered  that  that  case  was  already 
♦overruled  by  R.  v.  Abbott,  R.  v.  Bryan,  and  R.  v.  Roebuck,  r=i-.ri4 
supra,  p.  512.  ■- 

In  R.  V.  Goss,  29  L.  J.,  M.  C.  86,  Bell,  C.  C.  208,  it  was  attempted 
to  induce  the  Court  of  Criminal  Appeal  to  reconsider  the  decision  in 
R.  V.  Abbott,  supra,  p.  511,  the  facts  being  precisely  similar.  But  the 
court  confirmed  that  decision,  and  held  that  the  prisoner  was  rightly 
convicted.  And  in  R.  v.  Ragg,  which  was  argued  at  the  same  time  as 
R.  V.  Goss,  and  which  Avas  similar  to  that  of  R.  v.  Sherwood,  supra, 
they  also  upheld  the  conviction.  The  case  of  R.  v.  Bryan,  supra,  p. 
512,  was  relied  on  by  the  counsel  for  the  prisoner,  but  Erie,  J.,  pointed 
out  in  the  judgment  of  the  court  that  there  the  false  representation  was 
a  matter  of  undefined  opinion,  whereas  here  the  statement  was  not  one 
of  undefined  opinion,  or  of  exaggerated  praise,  but  a  false  pretence,  of 
a  definite  flict,  about  which,  with  the  means  of  information  which  the 
prisoner  had,  there  could  be  no  mistake. 

The  difference  between  a  mere  lie  and  an  indictable  false  pretence 
upon  the  subject  of  false  weights  is  thus  stated  by  Bramwell,  B.:  "If 
a  man  is  selling  an  article,  such  as  a  load  of  coal  for  a  load  of  coal,  for 
a  lump  sum,  and  makes  a  false  statement  as  to  its  weight  or  quantity, 
for  the  purpose  of  inducing  the  intended  purchaser  to  complete  the 
bargain,  that  is  not  a  false  pretence  within  the  statute.  But  if  he  is 
selling  it  by  quantity,  and  says  there  is  a  greater  quantity  than  there 
really  is,  and  thereby  gets  paid  for  a  quantity  of  coal  over  and  above 


6G6  FALSE   PRETENCES. 

the  quantity  delivered,  I  am  quite  satisfied  he  is  indictable."  E..  v. 
Ridgway,  3  F.  &  F.  838  ;  and  see  also  R.  v.  Lee,  L.  &  C.  418 ;  35 
L.  J.,  M.  C.  171. 

Pretences  obviously  false.  Although  the  false  pretences  are  so 
obviously  false  that  no  reasonable  person  ought  to  have  been  taken  in 
bv  tliem,  yet  if  in  fact  the  property  was  olitained  by  means  of  the  false 
pretences,  it  is  no  defence  to  say  that  the  prosecutor  ought  not  to  have 
been  deceived.^ 

It  appeared  that  the  prisoner  was  the  secretary  of  an  Odd  Fellows' 
Lodge,  whose  duty  it  was  to  receive  money  for  the  mcml)ers  at  lodge 
hours,  but  not  at  other  times.  The  prisoner  made  a  written  demand 
on  J.  B.,  a  member,  in  the  following  form  : — "  I  hereby  give  you 
notice,  that  you  owe  to  your  lodge  for  contributions,  etc.,  the  sum  of 
13s.  dd.,  due  on  the  20th  instant."  The  20th  of  November  was  the 
ensuing  lodge-night.  Prisoner  brought  this  demand  himself  to  J.  B., 
who  said,  "  Do  I  owe  that  amount,  13s.  9<i.  ?"  Prisoner  said,  "  You 
do."  J.  B.  said,  "  It  is  not  very  long  since  I  paid  a  sum  at  the 
lodge  to  you."  Prisoner  said,  "  That  is  what  you  owe."  J.  B.  paid 
him.  The  real  sura  wdiich  would  have  been  due  on  the  20th  of 
November  from  J.  B.  was  2s.  2c?.  The  prisoner  did  not  pay  over  to 
the  treasurer  the  13s.  9c?.  received  from  J.  B.  It  further  appeared 
that  W.  B.  was  a  member  of  the  lodge,  and  that  on  the  18th  of  June 
he  presented  himself  at  the  lodge,  it  being  a  lodge-night,  and  that  the 
prisoner  told  him  he  could  not  be  admitted  till  he  was  clear.  W.  B. 
asked  what  was  due.  The  prisoner  said,  13s.  5d.  W.  B.  gave  him 
a  sovereign,  and  Avas  then  admitted.  The  prisoner  paid  over  to  the 
treasurer  5s.  only,  which  was  the  sum  really  due  for  W.  B.  The 
prisoner  was  found  guilty  on  both  indictments,  and  a  case  was  reserved 
as  to  whether  there  was  in  either  a  false  pretence  within  the  meaning 
of  the  statute.  In  the  argument  Lord  Campbell  said,  "  What  is  your 
definition  of  a  false  pretence  which  would  exclude  this  case  ?  Do  you 
j^^-.  p.-|  *mean  that  it  must  be  a  representation  of  some  fact  the  truth 
'  -I  of  which  cannot  be  ascertained  ?"  Alderson,  B.  : — "  If  a  man 
represents  as  an  existing  fact  that  which  is  not  an  existing  fact,  and  so 
gets  your  money,  that  is  a  false  pretence  :  for  instance,  that  a  certain 
church  had  been  built,  and  that  there  was  a  debt  still  due  for  the 
building,  when  there  was  no  debt  due,  that  would  be  a  false  pretence, 
yet  the  matter  might  easily  be  inquired  into  and  ascertained.  Or  take 
the  common  case  :  The  prisoner  says,  '  I  am  sent  by  Mrs.  T.  for  a  pair 
of  shoes.'  Is  not  that  a  false  pretence?  Yet  inquiry  can  be  made, 
and  after  the  thing  has  happened  usually  is  made  and  the  falsehood 
detected."  Lord  Campbell : — "  It  seems  that  the  legislature  meant  to 
prevent  such  gross  frauds  as  may  easily  be  perpetrated,  though  an  in- 
quiry might  easily  be  made.  Suppose  a  tax-gatherer  demands  money 
for  taxes  alleged  to  be  due ;  you  inquire  and  find  that  the  persons 
through  whom  you  usually  make  such  payments  have  not  paid  it,  and 
you  accordingly  pay  it,  though  in  reality  nothing  be  due,  would  not 
^  Watson  V.  State,  16  Tenn.  604. 


FALSE   PRETENCES.  667 

that  be  a  false  representation  ?"  Parlce,  B.,  referred  to  2  Tliiss.  on 
Cri.  5th  ed.,  575  {j),  and  to  the  observations  of  Lord  Dennian  in  R. 
V.  Winkham,  10  Ad.  &  EL  34,  37  E.  C.  L.,and  said  that  Mr.CJroave's 
view  seemed  to  be  correct.  Erie,  J. : — ''  It  was  once  thouolit  that  the 
law  was  only  for  the  protection  of  the  strong  and  prudent ;  tiiat  notion 
has  ceased  to  prevail."  Alderson,  B. : — '<  The  old  law  about  a  false 
token  was  a  much  more  stringent  rule.  Wliy  sliould  Ave  not  hold 
that  a  mere  lie  about  an  existing  fact,  told  for  a  fraudulent  ])ur])()se, 
should  be  a  false  pretence  ?"  Lord  Campbell : — "  If  a  tradesman 
knowing  that  a  customer  owes  him  nothing  M'hatever,  savs  that  he 
owes  him  51.  and  gets  the  money,  I  think  he  comes  within  the 
statute.  I  entirely  agree  with  the  observations  of  Lord  Denman  in 
R.  V.  Wickham,  and  think  this  case  clearly  within  the  statute." 
The  rest  of  the  court  concurred.     R.  v.  Woolley,  1  Den.  C.  C.  559. 

The  prisoner  fraudulently  pretended  that  a  genuine  11.  Irish  bank- 
note was  a  51.  note,  and  thereby  obtained  the  full  change  for  a  5/. 
note.  It  was  held  that  he  Avas  properly  convicted  of  obtaining  money 
by  false  pretences,  although  the  person  to  whom  the  note  was  passed 
could  read,  and  the  note  upon  the  face  of  it  afforded  ample  means  of 
detecting  the  fraud.  R.  v.  Jessop,  Dears.  &  B.  C.  C.  442 ;  27  L.  J., 
M.  C.  70. 

3.    THE    PROPERTY   OBTAINED. 

••  Chattel,  money,  or  valuable  security."  The  words  used  by  the 
statute  are  any  "  chattel,  money,  or  valuable  security,"  and  therefore 
the  thing  obtained  must  come  within  the  meaning  of  these  words. 
The  meaning  of  "  valuable  security  "  is  given  by  the  interpretation 
clause  of  the  Act,  see  post,  tit,  "  Larceny,"  and  as  to  what  are  "  goods 
and  chattels "  and  wliat  are  "  valuable  securities "  generally,  see 
the  cases  as  to  larceny  of  written  instruments,  post,  "  Written  In- 
struments." 

An  unstamped  order  for  the  payment  of  money  Avhich  ought  to  be 
stamped  under  the  55  Geo.  3,  c.  184,  was  held  not  to  be  a  valuable 
security  within  the  statute — R.  v.  Yates,  1  Moo.  C.  C.  170.  But  see 
R.  V.  Watts,  2  Den.  C.  C.  14,  infra,  tit.  "  Larceny,"  "  Possession  obtained 
by  Servants,"  and  "  Written  Instruments,"  and  24  &  25  Vict,  c.  96,  s.  1. 
G.,  a  secretary  to  a  burial  society,  was  indicted  for  falsely  pretending 
that  a  death  had  occurred,  and  so  obtaining  from  the  president  an 
*order  on  the  treasurer  in  the  following  form  : — "  Bolton  Uni-  r*c-i  g 
ted  Burial  Society,  No.  23,  Bolton,  Sept.  1st,  1853.  Mr.  A.  L 
Entwistle,  Treasurer.  Please  to  pay  the  bearer  21.  10s.  Greenhalgh, 
and  charge  the  same  to  the  above  society,  Robert  Ford.  (Signed)  B. 
B.,  President."  It  was  held  that  this  was  a  valuable  security  within 
the  meaning  of  the  repealed  statute  7  &  8  Geo.  4,  c.  29,  s.  53,  as  ex- 
plained by  s.  5,  see  the  24  &  25  Vict.  c.  96,  s.  1,  infra,  tit.  "  Larceny." 
R.  V.  Greenhalgh,  Dears.  C.  C.  267. 

The  prisoner  was  convicted  on  an  indictment  which  charged  Inm 
with   obtaining    a  valuable    security  by  false   pretences.     The  facts 


668  FALSE   PRETENCES. 

were  that  the  prisoner  falsely  represented  to  the  prosecutor  that  a 
third  person  was  buying  up  a  quantity  of  leather  for  him  which  was 
to  come  into  his  warehouse  that  afternoon.  The  prosecutor  there- 
uj)()u  agreed  to  purchase  the  leather  and  to  accept  a  bill  for  the 
amount  of  the  purchase-money.  The  prisoner  then  handed  to  the 
prosecutor  a  bill  drawn  in  the  usual  way,  which  tlic  prosecmtor 
accepted  and  returned  to  the  prisoner.  The  prisoner  negotiated  the 
bill,  and  got  money  for  it.  It  was  held  that  the  indictment  could  not 
be  supported,  as  the  prisoner  had  obtained  nothing  from  the  prose- 
cutor, but  had  only  by  his  fraud  induced  him  to  sign  the  bill.  R.  v. 
Danger,  Dears.  &  B.  C.  C.  307.  But  this  case  is  now  met  by  the  24 
&  25  Vict.  c.  9G,  s.  90,  supra,  p.  498. 

A  railway  pass-ticket,  enabling  a  person  to  travel  free  on  the 
journey,  is  a  "  chattel "  within  the  statute.  "  The  ticket,"  said 
Pollock,  C.  B.,  in  delivering  the  judgment  of  the  court,  "while  in  the 
hands  of  the  party  using  it,  wns  an  article  of  value,  entitling  him  to 
travel  without  farther  payment ;  and  the  fact  that  it  was  to  be  re- 
turned at  the  end  of  the  journey  does  not  affect  the  question."  R.  v. 
Boulton,  1  Den.  C.  C.  R.  508  ;  19  L.  J.,  M.  C.  67.  As  to  the  fact  of 
its  having  to  be  returned  at  the  end  of  the  journey,  see  R.  v.  Kilham, 
ante,  p.  501. 

The  property  need  not  be  in  existence  at  the  time  when  the  false 
pretence  is  made.     R.  v.  Martin,  supra,  p.  502. 

Obtaining  a  dog  by  false  pretences  is  not  an  obtaining  a  cliattel 
within  the  repealed  statute  7  &  8  Geo.  4,  c.  29,  as  dogs  are  not 
the  subject  of  larceny.  R.  v.  Robinson,  1  Bell,  C.  C  34 ;  28  L.  J., 
M.  C.  58. 

The  defendant  was  indicted  for  obtaining  money  under  false  pre- 
tences. The  first  count  stated  the  false  pretences  by  which  the 
defendant  procured  the  prosecutors  to  cash  a  cheque  in  favor  of 
one  Jacob,  and  concluded  thus,  "  and  obtained  from  them  the 
amount  of  the  cheque  to  be  paid  to  the  said  Jacob,  and  further 
advances  to  him  to  answer  other  cheques  drawn  by  him  on  the 
prosecutors,  viz.,  etc.,  with  intent,  etc."  In  the  second  count  it  was 
alleged,  that  the  defendant  by  means,  etc.,  obtained  a  large  sum  of 
money,  to  wit,  etc.,  from  the  prosecutors,  and  also  the  cheque  men- 
tioned to  be  paid  to  the  said  Jacob,  with  intent,  etc.  It  apjjeared 
in  evidence,  that  in  order  to  induce  the  prosecutors,  who  were  the 
defendant's  bankers,  to  give  him  credit  and  honor  his  cheques,  he 
delivered  to  them  a  bill  drawn  by  him  upon  a  person  with  whom 
he  had  no  account,  and  which  had  no  chance  of  being  paid.  The 
prosecutors  paid  the  amount  of  the  cheque  to  Jacob.  The  defendant 
was  convicted,  and  on  a  case  reserved  for  the  opinion  of  the  judges, 
they  were  of  opinion  that  the  prisoner  could  not  be  said  to  have 
obtained    any  specific  sum  on  the  bill ;  all    that  was  obtained  was 


* 


517] 


*  credit  on  account,  and  they  therefore  held  the  conviction  wrong. 

R.  V.  Wavell,  1  Moody,  C.  C.  224.  In  R.  v.  Garrett,  supra, 
p.  502,  where  the  prisoner  by  drawing  on  L.  &  Co.,  induced  W.  & 
Co.,  at  St.  Petersburg,  to  advance  him  money,  it  was  held  that  he 


FALSE  PRETENCES.  ggg 

could  not  be  convicted  of  obtaining  money  by  false  pretences  from  L. 
&  Co.,  as  he  had  obtained  nothing  from  them,  not  even  credit.  Camp- 
bell, C.  J.,  in  giving  judgment,  said,  "  no  advantage  could  arise  to  the 
prisoner  from  the  cheque  being  honored.  He  had  gained  his  full  ob- 
ject at  St.  Petersburg.  It  was  a  matter  of  perfect  indiirerenc(;  to  him 
whether  W.  &  Co.  were  paid  by  L.  &  Co.  or  not."  In  II.  v.  Eagleton 
supra,  p.  510,  all  that  the  prisoner  obtained  was  credit  in  account  be- 
tween him  and  the  prosecutor.  The  money  was  not  actually  due  till 
after  the  trial  of  the  prisoner  took  place,  but  he  was  nevertlieless  held 
to  be  rightly  convicted  of  attempting  to  obtain  the  money.  See  also 
R.  V.  Witchell,  supra,  p.  508. 

It  is  sufficient  for  the  prosecutor  to  prove  that  some  part  of  the 
goods,  etc.,  stated  in  the  indictment  (for  the  rule  in  this  respect  is  the 
same  as  in  larceny,  see  that  title),  were  obtained  from  him  by  the  false 
pretences  used. 

Proof  of  the  false  pretences  being  made.  That  the  false  pretences 
were  made  must  be  proved  as  laid.  Where  in  the  averment  of  the 
pretence  it  was  stated  "  that  the  defendaut  pretended  that  he  had  paid 
a  certain  sum  into  the  Bank  of  England,"  and  the  witness  stated  that 
the  words  used  were  "  the  money  has  been  paid  at  the  bank,"  Lord 
Ellenborough  said,  "  In  an  indictment  for  obtaining  money  by  false 
pretences,  the  pretences  must  be  distinctly  set  out,  and  at  the  trial  they 
liiust  be  proved  as  laid.  An  assertion  that  money  has  been  paid  into 
the  bank,  is  very  different  from  an  assertion  that  it  had  been  })aid  into 
the  bank  by  a  particular  individual.  The  defendant  must  be  acquitted. 
R.  V.  Plestow,  1  Camp.  494.  There  the  assertion  that  an  individual 
had  paid  the  money  was  not  proved.  See  per  Maule,  J.,  in  R.  v.  Hew- 
gill,  1  Dears.  &  B.  C.  C.  R.  322.  But  where  the  indictment  charged,  that 
the  defendant  having  in  his  custody  a  certain  parcel  to  be  delivered,  etc., 
for  which  he  was  to  charge  Qs.,  delivered  a  ticket  for  the  sum  of  9s.  lOd., 
by  means,  etc.,  and  it  appeared  in  evidence  that  the  parcel  mentioned  in 
the  indictment  was  a  basket  of  fish,  it  was  objected  that  this  was  a  vari- 
ance ;  but  Lord  Ellenborough  overruled  the  objection,  saying  that  a 
basket  answered  the  general  description  of  a  parcel  well  enough,  but 
that  if  the  indictment  had  been  on  the  39  Geo.  3,  c.  58  (which  enacts 
that  if  any  porter,  or  other  person  employed  in  the  porterage,  or  de- 
livery of  boxes,  baskets,  packages,  parcels,  trusses,  game,  or  other 
things,  shall  take  any  greater  sum,  etc.),  it  would  have  been  a  fatal 
variance.     R.  v.  Douglas,  1  Camp.  212. 

It  is  sufficient  if  the  actual  substantial  pretence,  which  was  the  main 
inducement  to  the  prosecutor  to  part  Avith  his  money,  be  alleged  and 
proved  ;  although  it  may  be  shoAvn  by  evidence  that  other  matters,  not 
laid  in  the  indictment,  operated  in  some  measure  upon  the  mind  of  the 
prosecutor  as  an  inducement  to  him  to  part  with  his  money.  R.  v. 
Hewgill,  1  Dears.  C.  C.  R.  315  ;  R.  v.  English,  12  Cox,  C.  C.  171  ;  R. 
V.  Lince,  12  Cox,  C.  C.  R.  451,  ante,  p.  506.  But  the  nile  that  it  is 
sufficient  to  prove  any  part  of  the  pretences  laid,  if  the  property  were 
obtained  thereby,  must  be  confined  to  those  cases  where  such  part  is  a 


670  FALSE   PRETENCES. 

♦  f^lSl  separate  and  independent  pretence;  for  if  false  *pretences  are 
J  so  connected  together  upon  the  record  that  one  cannot  be  sepa- 
rated from  the  other,  and  the  statement  of  one  of  those  pretences  is  in- 
sufficient in  point  of  law,  no  judgment  can  be  given  on  the  other 
pretence.  2  Russ.  Cri.  598,  5th  ed.,  cited  R.  v.  Wickham,  10  Ad.  & 
E.  34,  37  E.  C.  L.,  ante,  p.  507. 

Parol  evidence  is  admissible  of  the  false  pretences  laid  in  the  in- 
dictment, though  a  deed  between  the  parties  stating  different  considera- 
tions for  parting  with  the  money,  be  also  put  in  evidence  for  the 
prosecution,  such  deed  having  been  made  for  the  purpose  of  the  fraud. 
R.  V.  Adamson,  2  Moo.  C.  0.  286.  The  prisoner  was  indicted  for 
falsely  pretending  that  his  wife  was  dead,  with  intent  to  defraud  a 
benefit  so(Mety.  The  stewards  required  a  certificate  of  her  death,  and 
the  prisoner  produced  to  them  a  false  one.  It  was  held,  that  the  real 
false  pretence  was  that  of  the  wife's  death,  and  not  the  feigned  certifi- 
cate of  it,  which  latter  was  the  only  evidence  of  the  actual  false  pre- 
tence. R.  V.  Dent,  1  C.  &  K.  249,  47  E.  C.  L.  Where  the  false 
pretences  are  contained  in  a  letter,  and  such  letter  has  been  lost,  the 
prisoner,  after  proof  of  the  loss,  mav  be  convicted  on  parol  evidence  of 
its  contents.     R.  v.  Chadwick,  QC.&F.  181,  25  E.  C.  L. 

The  prisoner  was  indicted  for  obtaining  a  filly  by  the  false  pretence 
that  he  was  a  gentleman's  servant,  and  had  lived  at  Brecon,  and  had 
bought  twenty  horses  in  Brecon  fair.  It  appeared  that  the  prisoner 
bought  the  filly  of  the  prosecutor,  and  made  him  this  statement,  which 
Avas  false,  and  also  told  him  that  he  would  come  down  to  the  Cross 
Keys  and  pay  him.  The  prosecutor  stated  that  he  parted  with  his 
filly,  because  he  believed  that  the  prisoner  would  come  to  Cross  Keys 
and  pay  him,  and  not  because  he  believed  that  the  prisoner  was  a  gen- 
tleman's servant,  etc.  It  was  held  by  Coleridge,  J.,  that  the  prisoner 
must  be  acquitted.  R.  v.  Dale,  7  C.  &  P.  352,  32  E.  C.  L. ;  see  also 
R.  V.  Smith,  2  Russ.  Cri.  575,  5th  ed. 

A.  was  indicted  for  a  misdemeanor  in  unlawfully  attempting  by  false 
pretences  made  to  "  B.  and  others,"  to  obtain  goods,  the  property  of 
the  said  B.  and  others,  with  intent  thereby  to  cheat  the  said  B.  and 
others  of  the  same.  It  was  proved  that  B.  was  one  of  a  firm,  and  that 
the  pretences  were  made  to  B.  alone,  though  with  intent  to  defraud  the 
firm.  On  a  case  reserved,  Jervis,  C.  J.,  said  in  delivering  his  judg- 
ment, "  I  am  of  opinion  that  the  conviction  was  right.  The  averment 
of  the  pretences  may  be  viewed  in  three  ways.  The  words  '  Baggal- 
lay  and  others '  may  either  mean  *  B,  and  the  rest  of  the  firm,'  in  which 
case  we  should  have  to  consider  whether  a  pretence  made  to  one  partner 
alone  may  be  laid  as  made  to  the  whole  firm ;  or  they  may  mean  '  B., 
and  other  persons,'  not  belonging  to  the  firm,  in  which  case,  I  think, 
proof  of  a  pretence  to  B.  alone  would  be  sufficient ;  or,  which  is,  I 
think,  the  correct  view,  the  words,  '  and  others '  may  be  rejected  as 
surplusage,  and  the  objection  of  variance  thereby  removed."  Patteson, 
J.,  concurred  in  the  latter  view.  Creswell,  J.,  concurred.  Erie,  J. : 
"  I  think  that  the  allegation  of  a  pretence  to  Baggallay  and  others 
only  admitted  proof  of  a  pretence  to  B.  alone ;  it  would  perhaps  have 


FALSE   PRETENCES.  671 

been  dififerent  if  the  pretence  had  been  laid  as  made  to  two  persons,  A. 
and  B.  by  name  ;  proof  of  a  distinct  several  pretence  to  eacli  must  then 
have  been  rcg-arded."  Martin,  B. :  "I  think  that  the  pretence  as  laid 
means  a  pretence  to  the  firm,  and  was  correctly  proved."  K.  v.  Kealcy 
2  Den.  C.  C.  68 ;  20  L.  J.,  M.  C.  57. 

*Proof  of  the  falsity  of  the  pretence.  This  must  be  clearly  r^j^ri  q 
proved.^  Tiie  prisoner  bought  from  the  prosecutor  a  horse  for  L  "^^^ 
121.  and  tendered  hira  in  payment  notes  to  that  amount  in  the  Oundle 
bank.  On  the  prosecutor  objecting  to  receive  these  notes,  the  prisoner 
assured  hira  they  were  good  notes,  and  upon  tliis  assurance  the  prose- 
cutor parted  with  the  horse.  The  prisoner  was  indicted  for  obtaining 
the  horse  on  false  pretences,  viz.  by  delivering  to  the  prosecutor  certain 
papers  purporting  to  be  promissory  notes,  well  knowing  them  to  be  of 
no  value,  etc.  It  appeared  in  evidence  that  these  notes  had  never  been 
presented  by  the  prosecutor  at  Oundle,  or  at  Sir  J.  Esdaile's  in  Lon- 
don, where  they  were  made  paj^able.  A  witness  stated,  that  he  recol- 
lected Rickett's  bank  at  Oundle  stopping  payment  seven  years  before, 
but  added  that  he  knew  nothing  but  what  he  saw  in  the  papers,  or 
heard  from  the  people  who  had  bills  there.  The  notes  appeared  to 
have  been  exhibited  under  a  commission  of  bankruptcy  against  the 
Oundle  Bank.  The  words  importing  the  memorandum  of  exhibit 
had  been  attempted  to  be  obliterated,  but  the  names  of  the  commis- 
sioners remained  on  each  of  them.  The  jury  found  the  prisoner 
guilty,  and  said  they  Avere  of  opinion,  that  when  the  prisoner  obtained 
the  horse  he  well  knew  that  the  notes  were  of  no  value,  and  that  it 
was  his  intention  to  cheat  the  prosecutor.  On  a  case  reserved,  the 
judges  held  the  conviction  wrong,  and  that  the  evidence  was  defective 
in  not  sufficiently  proving  that  the  notes  were  bad.  No  opinion  was 
given,  whether  this  would  have  been  an  indictable  fraud,  if  the  evi- 
dence had  been  sufficient.  R.  v.  Flint,  Russ.  &  Ry.  460.  The  de- 
fendant was  indicted  for  obtaining  money  by  falsely  pretending  that 
a  note  purporting  to  be  the  promissory  note  of  Coleman,  Smith,  and 
Morris,  was  a  good  and  available  note  of  C,  S.,  and  M.,  whereas  it 
was  not  a  good  and  available  note.  The  defendant  gave  the  note  to 
the  prosecutor  in  payment  for  meat.  A  witness  proved  that  he  had 
told  the  defendant  that  the  Leominster  bank  (from  which  the  note 
issued)  had  stopped  payment.  It  was  also  proved  that  the  bank  was 
shut  up,  and  that  Coleman  and  Morris  had  become  bankrupts  ;  but 
it  appeared  that  Smith,  the  third  partner,  had  not  become  bankrupt, 
Gaselee,  J.,  said,  that  upon  this  evidence  the  prisoner  must  be  acquit- 
ted, because,  as  it  appeared,  that  the  note  might  ultimately  be  paid,  it 
could  not  be  said  that  the  defendant  was  guilty  of  a  fraud  in  passing 
it  away.  R.  v.  Spencer,  3  C.  &  P.  420,  14  E.  C.  L.;  R.  v.  Clark,  2 
Dick.  Q.  S.,  by  Talfourd,  315 ;  R.  v.  Evans,  29  L.  J.,  M.  C.  20  ace; 
R.  V.  Walne^  11  Cox,  C.   C.   R.  647.     But  where  the  note  was  the 

^  Bowler  v.  State,  41  Miss.  570.     S. 

It  must  also  be  shown  that  the  defendant  knew  that  his  representations  were  false. 
Commonwealth  v.  Devlin,  8  Crim.  Law  Mag.  53. 


672  FALSE    PRETENCES. 

note  of  a  bank  which  had  been  made  banlcrupt  forty  years  before, 
and  it  was  proved  tliat  the  prisoner  was  aware  of  the  fact,  it  was 
Iiekl  that  the  evidence  was  snfficient  to  support  a  conviction  though 
the  bankruptcy  proceedings  were  not  proved,  and  there  was  no  evi- 
dence as  to  what  dividend  (if  anv)  had  been  paid.  li.  v.  Dowey,  37 
L.  J.,  M.  C.  52 ;  11.  V.  Hazelton,  L.  R.  2  C.  C.  134 ;  44  L.  J.,  M.  C. 
11,  ante,  p.  508. 

Tlie  question  of  proof  was  a  good  deal  discussed  in  R.  i\  Copeland, 
supra,  p.  504,  where  it  was  hekl,  that  the  fact  of  the  prisoner  paying 
his  addresses  was  sufficient  evidence  for  tlie  jury  on  which  they 
might  find  the  first  pretence  that  the  prisoner  was  a  single  man,  and 
in  a  condition  to  marry ;  and  that  this,  coupled  with  the  fact  that  he 
was  at  the  time  married  to  another  woman,  was  sufficient  evidence  on 
which  to  find  the  falseness  of  the  other  pretence,  that  he  was  entitled 
to  maintain  his  action  for  breach  of  promise  of  marriage.  An 
*"9nl  ^indictment  for  false  pretences  alleged  that  the  prisoner  ob- 
-J  tained  goods  by  falsely  pretending  that  a  person  who  lived  in 
a  large  house  down  the  street,  and  had  a  daughter  married,  had  asked 
him  to  procure  the  goods.  No  person  was  named  in  the  indictment, 
or  appears  to  have  been  named  by  the  prisoner  as  being  the  lady  in 
question.  A  lady  was  called  wlio  answered  the  description  given  by 
the  prisoner,  and  denied  that  she  had  ever  asked  the  prisoner  to  pro- 
cure any  goods.  The  prisoner  was  convicted,  and  on  a  case  reserved  as 
to  whether  the  false  pretence  was  sufficiently  negatived  by  the  evidence, 
the  court  affirmed  the  conviction.  R.  v.  Burnsides,  30  L.  J.,  M.  C 
42.  The  court  probal)ly  thought  that  the  jury  must  have  been  satis- 
fied that  the  lady  called  was  from  local  circumstances  sufficiently  iden- 
tified with  the  person  alluded  to  by  the  prisoner. 

Evidence  confined  to  the  issue.  The  general  rule  is  applicable 
that  the  evidence  must  be  confined  to  the  issue,  see  p.  92.'  But  some- 
times a  fraud  is  constructed  out  of  a  long  series  of  transactions.  If 
that  is  the  case,  then  all  may  be  given  in  evidence  upon  their  connec- 
tion being  shown.  Thus  in  R.  v.  Welman,  Dears.  C.  G.  188  ;  22  L. 
J.,  M.  C.  118,  the  evidence  showed  that  the  prisoner  in  July,  1850, 
called  upon  the  prosecutrix  and  made  false  representations  relative  to 
a  benefit  club,  but  failed  on  this  occasion  to  obtain  any  money.  In 
August  of  the  same  year  the  prisoner  again  called  relative  to  the  club, 
and  referred  to  the  previous  conversation.  It  was  held  on  a  case  re- 
served that  it  was  for  thejuiy  to  say  whether  these  conversations  were  so 
connected  as  to  form  one  continuing  representation  ;  and  that  if  so, 
they  might  connect  them. 

In  R.  I'.  Roebuck,  supra,  p.  512,  the  prisoner  Avas  indicted  for  ob- 
taining money  from  a  pawnbroker  by  falsely  pretending  that  a  chain 
was  silver.  The  chain  was  of  a  very  inferior  metal,  and  evidence 
was  admitted,  apparently   without  objection,  that  twenty-six  chains 

'  Evidence  cannot  be  given  of  false  pretences  made  subsequent  to  the  delivery  of 
the  property,  for  they  could  have  formed  no  inducement.  State  v.  Church,  43 
Conn.  471. 


FALSE   PRETENCES.  673 

were  found  on  the  prisoner,  and  that  these  were  of  similar  materials. 
Evidence  Avas  also  admitted  that  the  defendant,  a  few  days  after  the 
occasion  in  question,  oifered  a  similar  chain  to  another  pawnbroker, 
under  similar  circumstances.  This  was  objected  to,  and  the  point 
with  other  points,  reserved.  There  is  no  trace  of  any  discussion  on 
this  point,  or  any  allusion  to  it  in  the  judgment  of  the  court,  in  any 
of  the  reports  ;  but  the  conviction  was  affirmed.  The  defendant  did 
not  appear  by  counsel.  In  K.  v.  Holt,  30  L.  J.,  M.  C.  Ill,  the  defend- 
ant obtained  money  by  falsely  representing  to  a  creditor  of  his  employer 
that  he  was  authorized  to  receive  payment  of  the  debt.  Evidence  that 
the  prisoner  had  subsequently  obtained  money  from  another  creditor 
of  his  employer  by  a  similar  representation  was  admitted.  But  the 
Court  of  Criminal  Appeal  quashed  the  conviction,  saying  that  the 
evidence  was  inadmissible.  In  this  case  no  counsel  appeared  on  either 
side,  and  no  reasons  are  given  in  the  judgment.  The  latter  case,  how- 
ever, seems  to  overrule  the  inference  which  might  be  drawn  from 
R.  V.  Roebuck.  Evidence  of  a  previous  obtaining  of  money  by  similar 
false  pretences  is  clearly  admissible  in  order  to  show  guilty  knowledge. 
In  R.  V.  Francis,  L.  R.  2  C.  C.  128  ;  43  L.  J.,  M.  C.  97,  ante,  p.  101, 
where  the  prisoner  was  indicted  for  endeavoring  to  obtain  an 
advance  from  a  pawnbroker  upon  a  ring  by  the  false  pretence  that  it 
was  a  diamond  ring,  evidence  was  held  to  be  rightly  admitted  to  the 
effect  that  two  days  before  the  transaction  in  question,  the  prisoner 
had  obtained  an  advance  from  a  pawnbroker  upon  a  chain  which  he 
*represented  to  be  a  gold  chain,  but  Avhich  was  not  so,  and  en-  r^f.91 
deavored  to  obtain  from  other  pawnbrokers  advances  upon  a  '- 
ring  which  he  represented  to  be  a  diamond  ring,  but  which  in  the 
opinion  of  the  witnesses,  was  not  so,  see  ante,  p.  101. 

Proof  of  intent  to  cheat  or  defraud.  It  must  appear  that  the 
defendant  obtained  the  money,  etc.,  with  intent  to  cheat  or  defraud 
some  person  of  the  same.  Thus,  where  in  an  indictment  for  obtain- 
ing money  under  false  pretences,  the  allegation  of  the  obtaining  the 
money  did  not  state  that  it  was  with  intent,  etc.,  the  judges,  on  the 
point  being  reserved  for  their  consideration,  were  of  opinion  that  the 
indictment  was  bad.  R.  v.  Rush  worth,  Russ.  &  Ry.  317;  1  Stark. 
396.^ 

^  A  false  representation  tending  merely  to  induce  one  to  pay  a  debt  previously  due 
from  him,  is  not  within  the  statute  against  obtaining  property  by  false  pretences, 
though  payment  be  thereby  obtained.  People  v.  Thomas,  3  Hill,  169.  [A  false  rep- 
resentation whereby  one  is  cheated  into  performing  a  duty,  as  the  payment  of  an  ex- 
isting debt,  is  not  within  the  statute.  Commonwealth  v.  Leisey,  1  County  Ct.  Rep. 
(Pa.)  50 ;  Commonwealth  v.  Thompson,  3  Penna.  Law  Journal,  197 ;  s.  c.  2  Clark, 
33 ;  and  see  Commonwealth  v.  Henry,  22  Pa.  St.  253.  It  is  otherwise,  if  the  person  is 
not  only  cheated  into  doing  his  duty,  but  also  as  to  the  fact  that  he  is  doing  it.  Peo- 
ple f.  Smith,  5  Park,  C.  C.  (N.  Y.)  490.]  Under  an  indictment  for  obtaining  money 
by  false  pretences  it  must  be  shown  that  the  pretences  were  made  for  the  purpose  of 
obtaining  the  money.  Bowler  v.  State,  41  Miss.  570.  In  an  indictment  for  obtaining 
goods  under  false  pretences,  evidence  that  the  defendant  was  deeply  insolvent  at  the 
time  of  making  the  false  representations  relied  on,  is  competent  against  him 
for  the  purpose  of  showing  his  intent.  Commonwealth  v.  Jeffries,  7  Allen,  548.  [A 
guilty  intent  may  be  inferred  from  the  commission  of  acts  which  inevitably  deprives 

43 


674  FALSE   PRETENCES. 

Tlie  primary  intent  must  be  to  cheat  and  defraud.  Thus,  where 
the  prisoner  was  indicted  for  having  procured  from  the  overseer  of  a 
parish,  from  which  he  received  parochial  relief,  a  pair  of  shoes,  by 
falsely  pretending  that  he  could  not  go  to  work  because  he  had  no 
shoes,  when  he  had  really  a  sufficient  pair  of  shoes ;  and  it  appeared 
in  evidence,  that  on  the  overseer  bidding  him  go  to  work,  he 
said  he  could  not,  because  he  had  no  shoes,  upon  which  the  overseer 
supplied  him  with  a  pair  of  shoes,  whereas  the  prisoner  had  a 
pair  before  ;  the  prisoner  being  convicted,  the  case  was  considered  by 
the  judges,  who  held  that  it  was  not  within  the  act  (30  Geo.  3,  c.  24), 
the  statement  made  by  the  prisoner  being  rather  a  false  excuse  for 
not  working  than  a  false  pretence  to  obtain  goods.  R.  v.  AVakeling, 
Russ.  &  Ry.  504.  A.  owed  B.  a  debt,  of  which  B.  could  not  obtain 
payment.  C.  a  servant  of  B.,  went  to  A.'s  wife,  and  got  two  sacks  of 
malt  from  her,  saying  that  B.  had  bought  them  of  A.,  which  he  knew 
to  be  false,  and  took  the  malt  to  his  master,  in  order  to  enable  him  to 
pay  himself;  it  was  held  by  Coleridge,  J.,  that  if  C.  did  not  intend 
to  defraud  A.,  but  only  to  put  it  in  his  master's  power  to  compel  A. 
to  ])ay  him  a  just  debt,  he  could  not  be  convicted  of  obtaining  the 
malt  by  false  pretences.  The  prisoner,  on  entering  the  service  of  a 
railway  company,  signed  a  book  of  rules — a  copy  of  which  was  given 
to  him — one  of  the  rules  was  "  no  servant  of  the  company  shall  be 
entitled  to  claim  payment  of  any  wages  due  to  him  on  leaving  the 
company's  service  until  he  shall  have  delivered  up  his  uniform  cloth- 
ing," On  leaving  the  service,  the  prisoner  knowingly  and  fraudu- 
lently delivered  up  to  an  officer  of  the  company,  as  part  of  his  uniform, 
a  great  coat  belonging  to  a  fellow-servant,  and  so  obtained  the  wages 
which  would  have  been  due  to  him.  It  M^as  held  that  he  was  properly 
convicted  of  obtaining  the  money  by  false  pretences.  R.  v.  Bull,  14 
Cox,  C.  C.  R.  608.  R.  V.  Williams,  7  C.  &  P.  354,  32  E.  C.  L.  It 
is  no  defence  to  a  charge  of  obtaining  goods  by  false  pretences,  that  at 
the  time  of  falsely  pretending  or  of  obtaining,  the  defendant  intended 
to  pay  the  price  of  the  goods  when  it  should  be  in  his  power  to  do  so. 
R.  V.  Naylor,  L.  R.,  1  C.  C.  R.  4  ;  35  L.  J.,  M.  C.  61.^  A  defendant 
was  charged  in  the  first  count  of  an  indictment  with  having  falsely 
pretended  that  he  was  Mr.  H.,  who  had  cured  Mrs.  C.  at  the  Oxford 
Infirmary,  and  thereby  obtained  one  sovereign  with  intent  to  defraud 
G.  P.  "  of  the  same."  The  second  count  laid  the  intent  to  be  to 
defraud  G.  P.  "  of  the  sum  of  5s.,  parcel  of  the  value  of  the  said  last- 
mentioned  piece  of  current  gold  coin."  It  M'as  proved  that  the 
defendant  made  the  pretence,  and  thereby  induced  the  prosecutor  to 
buy,  at  the  price  of  5s.,  a  bottle  containing  something  which  he  said 

the  owner  of  his  property.  Commonwealth  v.  Schuyler,  1  County  Ct.  Rep.  (Pa.)  403.] 
If  a  particular  result  is  designed  to  be  accomplished  by  making  the  false  pretence, 
which,  however,  fails,  and  another  thing  of  value  is  obtained  and  accepted  with  like 
intent  to  defraud,  the  law  imputes  to  the  persons  making  the  false  pretence  a  design 
from  the  beginning  to  consummate  the  latter  result.     Todd  v.  State,  31  Ind.  514.     S. 

^  Intended   repayment  is  no  defence.    Commonwealth  v.  Schuyler,  1  County  Ct 
Itep.  (Pa.)  403. 


FALSE   PRETENCES.  G75 

*  would  cure  the  eye  of  the  prosecutor's  child.  The  prosecutor  r:|:r99 
gave  him  a  sovereign,  and  received  15s.  in  change.  It  was  ^  "• 
further  proved  that  the  defendant  was  not  Mr.  H.  It  was  held  that 
this  was  a  false  pretence  within  the  act,  and  that  the  intent  was  prop- 
erly laid  in  the  second  count.  R.  v.  Bloomfield,  Car.  &  M.  537.  But 
see  the  note  to  R.  v.  Leonard,  1  Den.  C.  C.  R.  306,  where  it  is  suggested 
that  the  second  count  in  R.  v.  Bloomfield  was  bad,  as  averring  an 
obtaining  of  one  thing  with  intent  to  cheat  of  another.  In  R.  v.  Leo- 
nard, the  first  count  of  the  indictment  charged  the  prisoner  with 
obtaining  from  the  prosecutor  an  order  for  the  payment  of  14^.  Is.  2d. 
by  false  pi'etences,  with  intent  to  defraud  him  of  the  same :  the  evi- 
dence as  to  this  count  was  that  the  prisoner  only  intended  to  defraud 
the  prosecutor  of  7s.,  as  the  rest  of  the  money  was  really  due ;  it  was 
held  that  the  first  count  was  proved.  The  second  count  was  similar 
to  the  second  count  in  R.  v.  Bloomfield,  and  the  court  recommended 
the  recorder,  who  had  reserved  the  case,  to  pass  a  separate  sentence 
upon  it. 

Now  by  the  24  &  25  Vict.  c.  96,  s.  88,  supra,  p.  497,  it  is  sufficient 
to  allege  in  the  indictment,  "  that  the  defendant  did  the  act  with  in- 
tent to  defraud,  without  alleging  the  intent  of  the  defendant  to  be 
to  defraud  any  particular  person."  And  by  the  same  section  it  is  not 
necessary  "  to  prove  an  intent  on  the  part  of  the  defendant  to  defraud 
any  particular  person,  but  it  sliall  be  sufficient  to  prove  that  the  de- 
fendant did  the  act  charged  with  intent  to  defraud." 

Proof  of  the  ownership  of  the  property.  The  property  obtained 
by  means  of  the  false  pretences  must  be  proved  to  be  the  property  of 
the  party  mentioned  in  the  indictment.  The  prisoner  was  indicted  for 
obtaining  the  sum  of  3s.  4c/.  of  the  moneys  of  the  Countess  of  Ilchester. 
It  appeared  in  evidence  that  the  prisoner  brought  a  basket  of  fish, 
which  he  delivered  to  the  servant  of  the  Countess,  with  a  false  ticket, 
charging  3s.  4(i.  too  much  for  carriage.  The  servant  paid  him  the 
full  amount  and  was  repaid  by  Lady  Ilchester.  On  it  being  objected, 
that  at  the  time  of  payment  this  was  not  her  money,  Lord  Ellenbor- 
ough  said,  that  her  subsequent  allowance  did  not  make  the  money 
paid  to  the  defendant  her  money  at  the  time.  She  was  not  charge- 
able for  more  than  was  actually  due  for  the  carriage,  and  it  depended 
upon  her  whether  she  should  pay  the  overplus.  The  servant,  how- 
ever, afterwards  swore  that,  at  the  time  of  this  transaction,  he  had  in 
his  hands  upwards  of  9s.  10c?.  (the  whole  sum  charged),  the  property 
of  his  mistress,  which  Lord  Ellenborough  considered  sufficient  to 
sustain  the  averment.     R.  v.  Douglas,  1  Campb.  212.^ 

A.,  B.,  and  C.  entered  into  partnership  for  the  sale  of  lamps.  It 
was  afterwards  ag-reed  that  A.  should  act  as  agent  for  the  sale  of  the 
lamps  on  commission,  and  that  his  expenses  and  the  commission  to 

^  On  an  indictment  for  obtaining  goods  and  chattels  by  false  pretences,  it  is  ne- 
cessary to  allege  that  they  were  the  property  of  some  person,  as  in  a  case  of  lar- 
ceny, or  an  excuse  must  be  stated  for  not  making  the  averment.  State  v.  Lath- 
rop,  15  Vt.  279.    S.    Commonwealth  v.  Graham,  1  County  Ct.  Eep.  (Pa.)  282. 


676  FALSE   PRETENCES. 

which  he  might  be  entitled  should  be  deducted  from  the  amount  of 
the  sales  before  the  profits  were  divided  between  the  partners.  A. 
falsely  pretended  that  he  had  received  orders  for  100  lamps,  whereby 
he  obtained  from  B.  and  C.  121.  10s.,  which  would  be  the  amount  of 
his  commission.  It  was  held  that  inasmuch  as  his  charges  were  to 
be  payable  out  of  the  capital  funds  of  the  partnership,  and  would  thus 
be  a  matter  of  account  between  him  and  his  partners,  he  could  not  be 
convicted.     R.  v.  Evans,  32  L.  J.,  M.  C.  38. 

Pretence  to  one  person — money  obtained  from  another.  A  pris- 
oner was  indicted  for  obtaining  money  from  A.  by  false  pretences.  The 
*f^9'^1  *false  pretence  was  made  to  A.,  who  told  the  prisoner  to  go  to 
-•  his  wife  for  the  money.  A.'s  wife  gave  the  money  to  the  pris- 
oner, A.  not  being  present.  The  prisoner  was  convicted,  and  the 
court  confirmed  the  conviction.  R.  v.  Moseley,  L.  &  C.  92  ;  31  L.  J., 
M.  C.  24. 

Pretence  made  through  an  innocent  agent.  The  prisoner  sent  a 
little  boy  to  get  J.  B.'s  wages.  The  boy  innocently  asked  for  them, 
and  took  them  to  the  prisoner.  The  indictment  charged  the  prisoner 
with  obtaining  the  money  from  the  prosecutor  by  falsely  pretending  to 
him,  that  he,  the  prisoner,  had  authority  from  J.  B.  to  receive  it.  The 
second  count  charged  the  prisoner  with  obtaining  money  from  the 
prosecutor  and  the  boy  by  falsely  pretending  to  the  boy  that  he  had 
authority^  from  J.  B.  to  receive  it.  It  was  held  that  both  these  counts 
were  bad ;  but  that  a  count,  charging  the  prisoner  with  obtaining 
money  from  the  prosecutor  by  falsely  pretending  to  him  that  the  boy 
had  autlwM'ity  from  J.  B.  to  receive  it,  would  have  been  good.  R.  v. 
Butcher,  1  Bell,  C.  C.  6  ;  28  L.  J.,  M.  C.  14. 

Proof  of  all  being  principals.  Where  several  persons  were  in- 
dicted for  obtaining  money  under  false  pretences,  it  was  objected,  that 
although  they  were  all  present  when  the  representation  was  made  to 
the  prosecutor,  yet  the  words  could  not  be  spoken  by  all,  and  one  of 
them  could  not  be  affected  by  words  spoken  by  another,  but  that  each 
was  answerable  for  himself  only,  the  pretence  conveyed  by  words 
being,  like  the  crime  of  perjury,  a  separate  act  in  the  person  using 
them  ;  the  Court  of  King's  Bench,  however,  held,  that  as  the  defend- 
ants were  all  present,  acting  a  different  part  in  the  same  transaction, 
they  were  guilty  of  the  imposition  jointly.  R.  v.  Young,  3  T.  R. 
98.' 

'  Where  two  persons  are  jointly  indicted  for  obtaining  goods  by  false  pretences, 
made  designedly  and  with  intent  to  defraud,  evidence  that  one  of  them,  with  the 
knowledge,  approbation,  concurrence,  and  direction  of  the  other,  so  made  the  false 
pretences  eharged,  warrants  ,the  conviction  of  both.  Commonwealth  v.  Harley,  7 
Mete.  462..  And  it  is  not  necessary,  in  order  to  convict  the  defendants  in  such  case,  to 
prove  that  they,  or  either  of  them,  obtained  the  goods  on  their  own  account,  or  de- 
sired or  expected  to  derive  personally  any  pecuniary  benefit  therefrom.     Id.     S. 

Where  two  are  jointly  indicted  for  obtaining  goods  by  false  pretences,  letters  which 
passed  between  them  are  admissible  to  show  the  scheme.  Commonwealth  v.  Blood,  8 
Grim.  Law  " 


FALSE  PRETENCES.  677 

On  an  indictment  for  obtaining  money  under  false  pretences,  n 
party  who  has  concurred  and  assisted  in  the  fraud  may  be  con- 
victed as  principal,  though  not  present  at  the  time  of  making  the 
pretence  and  obtaining  the  money.  R.  v.  Moland  and  others,  2 
Moo.  C.  C.  276.  See,  too,  R.  v.  Kerrigan,  L.  &  C.  383 ;  33  L.  J., 
M.  C.  71. 

See,  as  to  obtaining  money  by  means  of  forged  instruments,  24  & 
25  Vict.  c.  98,  s.  38,  post,  tit.  "  Forgery." 

Form  of  indictment.  As  to  the  allegation  of  the  intent  to  de- 
fraud it  is  enacted  by  the  24  &  25  Vict.  c.  96,  s.  88,  that  it  shall  be 
sufficient  in  any  indictment  for  obtaining  or  attempting  to  obtain  any 
property  by  false  pretences,  to  allege  that  the  defendant  did  the  act 
with  intent  to  defraud,  without  alleging  the  intent  of  the  defendant  to 
be  to  defraud  any  particular  person,  and  it  shall  be  sufficient  to  prove 
that  the  defendant  did  the  act  charged  with  intent  to  defraud.  This 
is  similar  to  the  14  &  15  Vict.  c.  100,  s.  8,  now  repealed.  It  seems, 
however,  that  the  indictment  is  bad  and  not  amendable  if  it  omits  to 
allege  in  express  words  an  "  intent  to  defraud."  R.  v.  James,  1 2  Cox, 
C.  C.  127,  so  held  by  Lush,  J.,  notwithstanding  that  it  was  submitted 
that  the  intent  to  defraud  might  be  inferred  from  the  general  words  of 
the  indictment,^ 

The  great  difficulty  in  framing  indictments  for  obtaining  property 
by  false  pretences,  arises  on  the  statement  of  the  false  pretences 
themselves.  Many  of  the  cases  already  stated,  where  the  question  of 
the  sufficiency  of  the  false  pretences  has  arisen  on  the  statement  in 
the  indictment  will  be  a  guide  on  this  subject.  The  following  are 
*cases  in  which  objections  of  a  more  formal  nature  had  been  r^roj^ 
taken.  An  indictment  alleged  that  "  F.  P.  was  possessed  of  a  L 
raare,  and  H.  of  a  horse,  and  that  H.  and  B.  falsely  pretended  to  F. 
P.  that  B.  was  possessed  of  the  sum  of  12^.,  and  that  if  F.  P.  would 
exchange  his  mare  for  H.'s  horse,  B.  was  willing  to  purchase  the  said 
horse  of  F.  P.  and  give  him  1 21.  for  it ;"  whereas  in  truth  and  in  fact 
B.  was  not  then  possessed  of  121.  This  indictment  was  held  on  de- 
murrer to  be  insufficient,  as  not  averring  that  the  defendant  H.  knew 
that  B.  was  not  possessed  of  the  121.  R.  v.  Henderson,  2  Moo.  C.  C 
192  ;  Car.  &  M.  321,  41  E.  C.  L.  In  Hamilton  v.  R.,  9  Q.  B.  271, 
58  E.  C.  L.;  16  L.  J.,  M.  C.  9,  the  indictment  charged  that  the  de- 
fendant contriving  and  intending  to  cheat  W.,  on  a  day  named,  did 
falsely  pretend  to  W.,  that  he,  the  defendant,  then  was  a  captain  in 
the  5th  regiment  of  Dragoon  Guards,  by  means  of  which  false  pre- 
tences the  defendant  did  obtain  of  W,  a  valuable  security,  the  property 
of  W.,  with  intent  to  cheat  W.  of  the  same,  whereas  the  defendant  was 
not  at  the  time  of  making  such  false  pretence  a  captain  in  the  said 
regiment,  as  he  well  knew.  It  was  held  in  error,  that,  after  conviction 
and  judgment,  this  was  a  good  indictment,  as  to  the  allegation  both  of 
the  intent  and  the  mode  of  obtaining  the  money,  and  as  to  the  denial 

^  An  indictment  for  obtaining  goods  by  false  pretences  must  contain  an  absolute 
negative  of  the  truth  of  the  pretences  employed.    Tyler  v.  State,  2  Humph.  37.    S. 


678  FALSE  PRETENCES. 

of  the  truth  of  the  pretence,  and  that  it  was  unnecessary  to  aver  that 
the  security  was  unsatisfied,  it  being  generally  sufficient,  after  verdict, 
that  the  indictment,  as  in  this  case,  followed  the  words  of  the  statute 
creating  the  olfence.  In  R.  v.  Bowen,  L3  Q.  B.  790,  66  E.  C.  L.;  19 
L.  J.,  M.  C.  6e5,  where  the  indictment  alleged  that  the  defendant  "did 
unlawfully,  falsely  pretend,  etc.,"  this  was  objected  to  on  a  motion  to 
arrest  the  judgmiMit  on  the  same  ground  as  that  taken  in  R.  v.  Hen- 
derson, supra,  but  the  court  thought  that  in  that  case  it  was  not 
sufficiently  noticed  the  word  "  knowingly  "  did  not  occur  in  the  statute, 
and  they  held  the  indictment  good  alter  verdict.  R.  v.  Gruby,  1  Cox, 
C.  C.  249.  An  indictment  stated  that  the  defendant  "did  unlawfully 
attempt  and  endeavor  fraudulently,  falsely,  and  unlawfully  to  obtain 
from  the  Agricultural  Cattle  Insurance  Company  a  large  sum  of  money, 
to  wit,  22^.  10.S'.  with  intent  thereby  to  cheat  and  defraud  the  company." 
It  was  held  that  there  was  no  misdemeanor  stated  of  which  the  pris- 
oner could  be  convicted  of  attempting.  See  R.  v.  Marsh,  1  Den.  C. 
C.  405  ;  19  L.  J.,  M.  C.  12.  In  Sill.  v.  R.,  Dears.  C.  C.  132 ;  22 
L.  J.,  M.  C.  41,  it  was  held  that,  notwithstanding  the  provision  in  the 
14  &  15  Vict.  c.  100,  s.  8,  it  was  necessary  to  allege  whose  property 
the  money  obtained  was,  and  that  this  was  not  a  formal  defect  which 
might  be  amended  under  s.  25  of  the  same  statute.  An  indictment, 
charging  that  A.  unlawfully  did  falsely  pretend  that  a  printed  paper 
was  a  good  and  valid  promissory  note,  is  sufficient  without  setting  out 
the  paper.  R.  v.  Coulson,  1  Den.  C.  C.  592  ;  19  L.  J.,  M.  C.  182. 
An  allegation  that  the  prisoner  obtained  "  from  A.  a  cheque  for  the 
sum  of  1/.  146'.  Qd.  of  the  moneys  of  B.,  is  a  sufficient  allegation  that 
the  cheque  was  the  property  of  B."  R.  v.  Godfrey,  1  Dears.  &  B.  C. 
C.  426. 

Where  the  indictment  charged  that  the  prisoner  falsely  pretended 
he  was  the  servant  of  A.,  and  in  fact  he  did  so  pretend  at  first,  but 
subsequently  pretended  that  he  was  the  servant  of  B.,  and  the  prose- 
cutor was  induced  to  part  with  his  money  upon  such  second  false  pre- 
tence, it  was  held  that  the  evidence  did  not  support  the  indictment. 
R.  V.  Bulmer,  L.  &  C.  476. 

Description  of  property.     See  post,  tit.  "  Larceny," 

iifrc)r-\  *Obtaining  bounty-money.  By  the  Annual  Mutiny  Act, 
"^  -I  recruits  obtaining  enlistment-money  improperly  are  punisha- 
ble summarily  before  justices  of  the  peace.  Under  the  old  mutiny 
acts  it  was  made  punishable  in  the  same  way  as  obtaining  money  by 
false  pretences,  to  obtain  money  by  making  false  representations  as  to 
any  matters  contained  in  the  oaths  and  certificates  mentioned  in  those 
acts.  See  R.  v.  Jessup,  25  L.  J.,  M.  C.  54.  There  can  be  no  doubt 
that  obtaining  bounty-money  fraudulently  is  within  the  general  law 
relating  to  false  pretences.  Obtaining  the  property  of  Building  Socie- 
ties or  Industrial  Societies  by  false  pretences  is  punishable  on  summary 
conviction  or  by  indictment  by  37  &  38  Vict.  c.  42,  s.  1 ;  39  &  40 
Vict.  c.  45,  s.  12  (10). 


FALSE   PRETENCES.  679 

Venue.  The  prisoner  was  indicted  for  obtaining;  money  by  false 
pretence,  the  venue  being  laid  in  Herefordshire.  The  false  pretences 
were  made  in  Herefordshire,  but  the  money  was  received  in  Mon- 
mouthshire. The  judges  thought  the  indictment  was  laid  in  the 
wrong  county.  R.  v.  Buttery,  cited  in  R.  v.  Burdett,  4  Barn.  &  Aid. 
at  p.  179,  6  E.  C.  L.  The  contrary  seems  to  have  been  held  in  the 
case  of  R.  v.  Richards,  decided  on  the  1st  of  March,  1884,  although 
in  that  case  the  prisoner  not  only  made  the  false  pretences  but  also  ob- 
tained the  delivery  orders  for  the  goods  at  the  place  where  he  was  in- 
dicted, though  the  actual  delivery  of  the  goods  took  place  elscM^iere. 
(See  this  case  referred  to  in  Addenda.)  The  prisoner  residing  in  the 
county  of  M.,  wrote  a  begging  letter  to  the  prosecutor,  who  resided  in 
the  same  county,  but  which  letter  was  posted  by  an  accomplice  of  the 
prisoner,  in  the  county  of  L.  The  prosecutor,  according  to  the  re- 
quest contained  in  the  letter,  sent  a  post-office  order  to  the  prisoner, 
addressed  to  him  at  G.,  in  the  county  of  L.,  which  the  accomplice  re- 
ceived, and  delivered  tho  proceeds  to  the  prisoner  in  the  county 
of  M.  It  was  held  that  the  prisoner  was  rightly  tried  in  M. 
R.  V.  Jones,  1  Den.  C.  C.  551.  The  prisoner  wrote  and  posted  in  the 
county  of  A.  a  letter  containing  a  false  pretence,  which  the  prosecutor 
received  in  the  borough  of  B.  The  prosecutor,  in  answer  posted  a 
letter  in  the  borough  of  B.,  containing  money,  which  the  prisoner  re- 
ceived in  the  county  of  A.  It  was  held  that,  under  the  7  Geo,  4,  c. 
64,  s.  12  (supra,  p.  249)  which  authorizes  the  trial  in  any  jurisdiction 
where  the  offence  is  begun  or  completed,  the  prisoner  might  be  tried 
in  the  borough.  R.  v.  Leech,  25  L.  J.,  M.  C.  77  ;  1  Dear.  C.  C.  642. 
See  R.  V.  Holmes,  12  Q.  B.  D.  23;  53  L.  J.,  M.  C.  37 ;  R.  v.  Rogers, 
3  Q.  B.  D.  28;  47  L.  J.,  M.  C.  11,  ante,  tit.  "Embezzlement,"  p. 
474.  Where  the  prisoner  was  indicted  for  obtaining  money  by  send- 
ing a  false  return  of  fees  to  the  Commissioners  of  the  Treasury,  and 
it  appeared  that  the  return  was  posted  in  Northampton  and  received 
at  Westminster,  upon  which  a  minute  was  drawn  up  directing  the 
money  to  be  paid  by  the  paymaster-general,  and  the  money  was  paid 
at  Westminster,  it  was  held  that  the  prisoner  might  be  indicted  and 
tried  as  for  an  offence  in  Northamptonshire.     R.  v.  Cooke,  F.  &  F.  64. 

Where  the  prisoner  obtained  sheep  by  false  pretences  in  Middlesex, 
and  a  few  days  afterwards  removed  them  into  Essex,  where  he  was 
apprehended,  it  was  held  that  the  quarter  sessions  of  Essex  had  no 
jurisdiction  to  try  the  offence.  R.  v.  Stanbury,  L.  &  C.  128  j  31 
L.  J.,  M.  C.  88. 


680  FER^  NATURiE. 


526*]  *FER^  NATURE. 

LARCENY  OF  ANIMALS. 

Op  domestic  animals,  as  sheep,  oxen,  horses,  etc.,  or  of  domestic 
fowls,  as  hens,  ducks,  geese,  etc.,  and  of  their  eggs,  larceny  may  be 
committed  at  common  law,  for  they  are  the  subjects  of  property,  and 
serve  for  food.  1  Hale,  P.  C.  511 ;  Hawk.  P.  C.  b.  1,  c.  19,  s.  43. 
The  indictment  should  show  the  species  of  eggs,  so  that  it  may  appear 
that  they  are  the  subject  of  larceny.  R.  v.  Cox,  1  C.  &  K.  494,  47 
E.  C.  L. ;  and  see  R.  v.  Gallears,  1  Den.  C.  C.  R.  501 ;  19  L.  J.,  M.  C. 
13.  And  it  being  felony  to  steal  animals  themselves,  it  is  also  a  felony 
to  steal  the  product  of  any  of  them,  though  taken  from  the  living 
animal.  Thus  milking  cows  at  pasture,  and  stealing  the  milk,  was 
held  felony  by  all  the  judges.  Anon,,  2  East,  P.  C.  617.  So  pulling 
the  wool  from  a  sheep's  back.  R.  v.  Martin,  Id.  618.  The  stealing 
of  a  stock  of  bees  also  seems  to  be  admitted  to  be  felony.  Tibbs  v. 
Smith,  L.  Raym.  33 ;  2  East,  P.  C.  607 ;  2  Russ.  on  Cri.  235,  5th 
ed.  The  Scotch  law  corresponds  with  that  of  England  in  this  respect, 
the  stealing  of  bees  in  a  hive,  being  considered  theft  at  common  law, 
and  the  prosecutions  of  such  thefts  being  very  numerous.  Alison's 
Princ.  Crim.  Law  of  Scotland,  260 ;  see  also  1st  Rep.  Crim.  Law  C. 
p.  14. 

Larceny  cannot  be  committed  of  animals  in  which  there  is  no  prop- 
erty, as  of  beasts  that  areferce  naturae  and  unreclaimed,  such  as  deer, 
liares,  or  conies  in  a  forest,  chase,  or  warren,  fish  in  an  open  river  or 
pond,  or  wild  fowl  at  their  natural  liberty,  although  any  person  may 
have  the  exclusive  right,  railone  loci  aut  privilegii,  to  take  them  if  he 
can  in  those  places.  1  Hale,  P.  C.  511  ;  4  Bl.  Com.  235,  6  ;  2  East, 
P.  C.  607.  So  of  swans,  though  marked,  if  they  range  out  of  the 
royalty,  because  it  cannot  he  known  that  they  belong  to  any  person. 

1  Hale,  P.  C.  511.  So  of  rooks  in  a  rookery.  See  Hannam  v.  Mockett, 

2  B.  &  C.  934,  9  E.  C.  L.;  4  D.  &  R.  518. 

Where  animals  ferce  naturce  are  dead,  reclaimed  (and  known  to  be 
so),  or  confined,  and  may  serve  for  food,  it  is  larceny  at  common  law 
to  take  them.  Thus,  deer  inclosed  in  a  park,  fish  in  a  trench  or  net, 
or,  as  it  should  seem,  in  any  other  place  which  is  private  property, 
and  ^vliere  they  may  be  taken  at  the  pleasure  of  the  owner  at  any 
time,  pheasants  or  partridges  in  a  mew,  young  hawks  in  a  nest,  or 
even  old  ones,  or  falcons  reclaimed,  and  known  by  the  partv  to  be  so. 
1  Hale,  P.  C.  511  ;  2  East,  P.  C.  607 ;  R.  v.  Cory,  10  Cox,  C.  C.  23. 
So  of  young  pigeons  in  a  dove-cot.  1  Hale,  P.  C.  511.  So  where 
pigeons  were  shut  up  in  their  boxes  every  night.  Per  Parke,  B.,  R.  v. 
Luke,  MS.  Durham  Spring  Ass.  1839.  And  the  Court  of  Criminal 
Appeal   has   decided,  that  tame  pigeons,  although  unconfined    with 


FER^   NATURE.  681 

free  access  at  their  pleasure  to  the  open  air,  are  the  subjects  of  lar- 
ceny :  Campbell,  C.  J.,  in  pronouncing  judgment,  saying,  "It  had 
been  supposed  that  Parke,  B.,  had  decided  that  there  could  be  no  ' 
*larceny  of  pigeons,  unless  they  were  shut  up  in  a  house  or  r^nnn 
box,  but  Parke,  B.,  had  in  fact  not  so  decided.  We  all  think  i  ^'^' 
that  tame  pigeons  may  be  the  subject  of  larceny,  although  they  have 
the  opportunity  of  getting  out  and  enjoying  themselves  in  the  open 
air."  R.  v.  Cheafor,  2  Den.  C.  C.  361.  So  of  tame  pheasants  ;  R.  v. 
Head,  1  F.  &  F.  350.  So  of  partridges  three  weeks  old,  and  able  to 
fly,  reared  in  a  coop  since  removed,  they  still  returning  to  sleep  under 
a  hen's  wings.  R.  v.  Shickle,  L.  R.,  1  C.  C.  R.  158;  38  L.  J.,  M.  C. 
21. 

Of  the  eggs  of  hawks  or  swans,  though  reclaimed,  larceny  cannot 
be  committed,  the  reason  of  which  is  said  to  be,  that  a  less  punish- 
ment, namely,  fine  and  imprisonment,  is  appointed  by  statute  for  that 
offence.  2  East,  P.  C.  607  ;  2  Russ.  Cri.  235,  5th  ed.  And  this  is 
probably  so  as  to  eggs  of  pheasants  and  pai-tridges  and  other  birds 
irreclaimed ;  as  the  taking  of  the  parents  is  not  felony. 

When  an  animal  ferce  natwrce  is  killed,  larceny  may  be  committed 
of  its  flesh,  as  in  the  case  of  wild  deer,  pheasants,  partridges,  etc.,  for 
the  flesh  or  skins  are  the  subject  of  property.  3  Inst.  116  ;  1  Hale, 
P.  C.  83.  An  indictment  for  stealing  a  dead  animal  should  state  that 
it  was  dead,  for  upon  a  general  statement  that  the  party  stole  the 
animal,  it  is  to  be  intended  that  he  stole  it  alive.  Per  Holroyd,  J., 
R.  t;.  Edward,  Russ.  &  Ry.  498 ;  Reg.t;.  Roe,  11  Cox,  C.  C.  R.  559. 
So  an  indictment  for  stealing  two  turkeys  was  held  by  Hullock,  B., 
not  to  be  supported  by  proof  of  stealing  two  dead  turkeys.  R.  v. 
Halloway,  1  C.  &  P.  128,  12  E.  C.  L.  So  where  the  prisoner  was 
indicted  for  stealing  a  pheasant,  value  40s.,  of  the  goods  and  chattels 
of  H.  S.,  all  the  judges,  after  much  debate,  agreed  that  the  conviction 
was  bad  ;  for  in  the  case  of  larceny  of  animals  ferce  naturce,  the  in- 
dictment must  show  that  they  were  either  dead,  reclaimed,  or  confined, 
otherwise  they  must  be  presumed  to  be  in  their  original  state,  and  it 
is  not  sufficient  to  add  "  of  the  goods  and  chattels  "  of  such  a  one. 
R.  V.  Rough,  2  East,  P.  C.  607.  But  where  the  prisoner  wa^  indicted 
for  receiving  a  lamb  before  then  stolen,  and  it  appeared  in  evidence 
that  the  animal  had  been  killed  before  it  was  received  by  the  prisoner, 
the  prisoner  being  convicted,  the  judges  held  the  conviction  good, 
according  to  the  report,  on  the  ground  that  it  was  immaterial  as  to 
the  prisoner's  offence  whether  the  lamb  was  alive  or  dead,  his  offence 
and  the  punishment  for  it  being  in  both  cases  the  same.  R.  v.  Puck- 
ering, 1  Moo.  C.  C.  242  ;  1  Lew.  C.  C.  302.  Rabbits  upon  being 
killed  by  a  wrong-doer  become  the  property  of  the  owner  of  the 
soil.  Blades  v.  Higgs,  11  H.  of  L.  Cases,  621 ;  34  L.  J.,  C.  P.  286; 
but  they  are  not  thereby  reduced  into  possession,  so  that  an  indictment 
for  larceny  would  lie  against  a  person  wrongfully  removing  and  carry- 
ing them  away ;  for  if  the  wrong-doer  kill  and  carry  away  as  one 
continuous  act  it  is  not  larceny  ;  but  if  there  is  a  discontinuance  it  is 
larceny,  at  all  events,  if  there  is  a  reduction  into  possession  of  the 


682  FERiE   NATURE. 

owner.  U.  v.  Townley,  L.  R.,  1  C.  C.  R.  315 ;  40  L.  J.,  M.  C.  144 ; 
see  post,  532,  where  the  case  is  more  fully  reported.  In  R.  v.  Fetch, 
*  14  Cox,  C.  C.  R.  116,  the  wrong-doer  took  the  rabbits  to  another  part 
of  the  same  land,  and  placed  them  in  a  bag,  with  the  intention  of 
appropriating  them  to  his  own  use,  and  carrying  them  away ;  a 
keeper  observing  him,  went  and  nicked  some  of  the  rabbits  in  the 
wrong-doer's  absence.  There  was  no  abandonment  of  possession  on 
the  part  of  the  wrong-doer  ;  and  the  act  of  the  keeper  was  only  for 
the  purpose  of  identifying  them,  and  not  for  the  purj)ose  of  reducing 
*fi9«l  ^^1®'^  ^^^o  ^^^®  possession  of  the  master.  It  was  held  that  the 
J  *vvrong-doer  could  not  be  convicted  of  larceny  in  taking  a'way 
the  rabbits.  See  also  R.  v.  Read,  3  Q.  B.  D.  131 ;  47  L.  J.,  M.  C. 
50 ;  ante,  p.  472.  Where  the  indictment  was  for  stealing  a  dead  ])art- 
ridge,  and  it  turned  out  that  it  was  shot  by  one  of  a  shooting  ]:>arty, 
and  was  only  wounded,  and  was  picked  up  by  the  prisoner  in  a  dying 
state,  it  was  held  that  it  was  not  the  subject  of  larceny,  as  it  was 
ferce  naturm,  and  alive,  and  not  reduced  into  possession.  R,  v.  Roe, 
11  Cox,  C.  C.  R.  554. 

Before  the  late  game  act,  it  was  held  that  it  was  not  necessary  that 
a  person  in  possession  of  game,  which  has  been  reclaimed,  should  be 
a  qualified  person,  in  order  to  support  an  indictment  laying  the  prop- 
erty in  him.     R.  v.  Jones,  3  Burn's  Just.,  "Larceny,"  218. 

There  is,  says  Lord  Coke,  a  distinction  between  such  beasts  as  are 
feroe  natiirce,  and  being  made  tame,  serve  for  pleasure  only,  and  such 
as  being  made  tame,  serve  for  food,  etc.  3  Inst.  101.  Thus,  although 
the  owner  may  have  a  lawful  property  in  them,  in  respect  of  which  he 
may  maintain  an  action  of  trespass,  yet  there  are  some  things  of  which, 
in  respect  of  the  baseness  of  their  nature,  larceny  cannot  be  committed, 
as  mastiffs,  spaniels,  greyhounds,  and  bloodhounds ;  and  other  things, 
though  reclaimed  by  art  and  industry,  as  bears,  foxes,  ferrets,  etc.,  and 
their  whelps  or  calves,  because,  though  reclaimed,  they  serve  not  for 
food  but  pleasure,  and  so  differ  from  pheasants,  swans,  etc.,  which, 
when  made  tame,  serve  for  food.  1  Hale,  P.  C.  512 ;  R.  v.  Searing, 
Russ.  &  Ry.  350.  The  rule  with  regard  to  animals /erce  naturce  not 
fit  for  food,  is  said  to  include  "  bears,  foxes,  monkeys,  apes,  polecats, 
cats,  dogs,  ferrets,  thrushes,  singing  birds  in  general,  parrots  and  squir- 
rels." 1st.  Rep.  Crim.  Law  Com.,  p.  14.  The  young  of  wild  ani- 
mals are  also  included.     Id. 

See  as  to  dogs,  supra,  p.  451. 

See  as  to  cattle,  supra,  p.  389. 


FISH.  683 


*FISH.  [*529 

TAKING   OR   DESTROYING   FISH. 

It  will  be  seen  {post,  tit.  "  Larceny  "),  that  larceny  might  be  com- 
mitted at  common  law  of  fish  in  a  tank  or  net,  or,  as  it  seems,  in  any 
inclosed  place,  where  the  owner  might  take  them  at  his  will.  2  East, 
P.  C.  610.  But  it  was  no  larceny  to  take  fish  in  a  river,  or  other  great 
water,  where  they  were  at  their  natural  liberty.  Hawk.  P.  C.  b.  1,  c. 
33,  s.  39.  Property  of  this  kind  was  protected  by  various  statutes  (22 
&  23  Car.  2,  c.  25,  s.  7 ;  4  &  S  Will.  3,  c.  23,  s.  5 ;  9  Geo.  1,  c.  22 ; 
5  Geo.  3,  c.  14).  Those  statutes  were  repealed,  and  the  substance  of 
them  re-enacted  in  the  7  &  8  Geo.  4,  c.  29.  This  statute  is  also  now 
repealed,  and  by  the  24  &  25  Vict.  c.  96,  s.  24,  "  whosoever  shall  un- 
lawfully and  wilfully  take  or  destroy  any  fish  in  any  water  which  shall 
run  through  oi  be  in  any  land  adjoining  or  belonging  to  the  dwelling- 
house  of  any  person  being  the  owner  of  such  water,  or  having  a  right 
of  fishery  therein,  shall  be  guilty  of  a  misdemeanor,  and  whosoever  shall 
unlawfully  and  wilfully  take  or  destroy,  or  attempt  to  take  or  destroy, 
any  fish  in  any  water  not  being  such  as  hereinbefore  mentioned,  but 
which  shall  be  private  property,  or  in  which  there  shall  be  any  private 
right  of  fishery,  shall,  on  conviction  thereof  before  a  justice  of  the 
peace,  forfeit  and  pay,  over  and  above  the  value  of  the  fish  taken  or 
destroyed  (if  any),  such  sum  of  money,  not  exceeding  five  pounds,  as 
to  the  justice  shall  seem  meet :  provided  that  nothing  hereinbefore  con- 
tained shall  extend  to  any  jjerson  angling  between  the  beginning  of 
the  last  hour  before  sunrise,  and  the  expiration  of  the  first  hour  after 
sunset ;  but  whosoever  shall,  by  angling  between  the  beginning  of  the 
last  hour  before  sunrise  and  the  expiration  of  the  first  hour  after  sun- 
set, unlawfully  and  wilfully  take  or  destroy,  or  attempt  to  take  or  de- 
stroy, any  fish  in  any  such  water  as  first  mentioned,  he  shall,  on 
conviction  before  a  justice  of  the  peace,  forfeit  and  pay  any  such  sum 
not  exceeding  five  pounds  ;  and  if  in  any  such  water  as  last  mentioned, 
he  shall,  on  the  like  conviction,  forfeit  and  pay  any  sum  not  exceeding 
two  pounds,  as  to  the  justice  shall  seem  meet;  and  if  the  boundary  of 
any  parish,  township,  or  vill  shall  happen  to  be  in  or  by  the  side  of 
any  such  water  as  is  hereinbefore  mentioned,  it  shall  be  suiRcient  to 
prove  that  the  offence  was  committed  either  in  the  parish,  township,  or 
vill  named  in  the  indictment  or  information,  or  in  any  parish,  town- 
ship, or  vill  adjoining  thereto." 

On  an  indictment  under  the  above  section,  the  taking  of  the  fish  need 
not  be  such  a  taking  as  would  be  necessary  to  constitute  larcenv.  See 
K.  V.  Glover,  Russ.  &  R.  269. 

Under  the  above  section  it  is  no  defence  that  the  accused  acted  under 
a  bond  fide  though  mistaken  notion  of  a  right  which  could  not  by  pes- 


684  FISH. 

sibillty  exist,  or  that  there  was  no  mens  rea,  the  accused  having  acted 
without  criminal  intent.  Hudson  v.  Macrae,  4  B.  &  S.  592,  116  E. 
C.  L. 

^P-or^-i  *A  bond  fide  claim  of  right,  involving  a  real  question  be- 
J  tween  the  parties,  will  oust  the  jurisdiction  of  the  justices,  but 
if  the  justices  decide  that  there  is  no  such  bona  fide  claim,  the  court 
above  will  review  their  decision.  R.  v.  Stimpsou,  and  R.  v.  Peak,  4 
B.  &  S.  301,  116  E.  C.  L.;  9  Cox,  C.  C.  356. 

It  seems  that  the  word  "adjoining"  imports  actual  contact,  and, 
therefore,  ground  separated  from  a  house  by  a  narrow  walk  and  pal- 
ing, wall,  or  gate,  is  not  within  the  meaning  of  that  word,  though  it 
might  be  within  the  meaning  of  the  word  "  belonging."  R.  v.  Hodges, 
M.  &M.  341. 

By  the  24  &  25  Vict.  c.  96,  s.  25,  "  if  any  person  shall  at  any  time 
be  found  fishing,  against  the  provisions  of  this  act,  it  shall  be  lawful 
for  the  owner  of  the  ground,  water,  or  fishery  where  such  offender  shall 
be  so  found,  his  servants,  or  any  person  authorized  by  him,  to  demand 
from  such  offender  any  rods,  lines,  hooks,  nets,  or  other  implements 
for  taking  or  destroying  fish,  which  shall  then  be  in  his  possession,  and 
in  case  such  offender  shall  not  immediately  deliver  up  the  same,  to 
seize  and  take  the  same  from  him,  for  the  use  of  such  owner  :  provided 
that  any  persons  angling,  against  the  provisions  of  this  act,  between 
the  beginning  of  the  last  hour  before  sunrise  and  the  expiration  of  the 
first  hour  after  sunset,  from  whom  any  implement  used  by  anglers  shall 
be  taken,  or  by  whom  the  same  shall  be  delivered  up  as  aforesaid,  shall 
by  the  taking  or  delivering  thereof  be  exempted  from  the  payment  of 
any  damages  or  penalty  for  such  angling." 

And  by  s.  26,  "  whosoever  shall  steal  any  oysters  or  oyster  brood 
from  any  oyster  bed,  laying,  or  fishery,  being  the  property  of  any  other 
person,  and  sufficiently  marked  out  or  known  as  such,  shall  be  guilty 
of  felony,  and  being  convicted  thereof  shall  be  liable  to  be  punished  as 
in  the  case  of  simple  larceny ;  and  whosoever  shall  unlawfully  and 
wilfully  use  any  dredge,  or  any  net,  instrument,  or  engine  whatsoever 
within  the  limits  of  any  such  oyster  bed,  laying,  or  fishery,  being  the 
property  of  any  other  person,  and  sufficiently  marked  out  and  known 
as  such,  for  the  purpose  for  taking  oysters  or  oyster  brood,  although 
none  shall  be  actually  taken,  or  shall  unlawfully  and  wilfully,  with 
any  net,  instrument,  or  engine  drag  upon  the  ground  or  soil  of  any 
such  fishery,  shall  be  deemed  guilty  of  a  misdemeanor,  and  being  con- 
victed thereof  shall  be  liable,  at  the  discretion  of  the  court,  to  be  im- 
prisoned for  any  term  not  exceeding  three  months,  with  or  Avithout 
hard  labor,  and  with  or  without  solitary  confinement ;  and  it  shall  be 
sufficient  in  any  indictment  to  describe  either  by  name  or  otherwise, 
the  bed,  laying,  or  fishery  in  which  any  of  the  said  offences  shall  have 
been  committed,  without  stating  the  same  to  be  in  any  particular  parish, 
township,  or  vill :  provided  that  nothing  in  this  section  contained  shall 
prevent  any  person  from  catching  or  fishing  for  any  floating  fish  within 
the  limits  of  any  oyster  fishery,  with  any  net,  instrument,  or  engine 
adapted  for  taking  floating  fish  only." 


PISH.  685 

By  the  31  &  32  Vict.  c.  45,  s.  51,  all  oysters  and  mussels  being  in 
or  on  an  oyster  or  mussel  bed  within  the  limits  of  a  several  oyster  and 
mussel  fishery  granted  by  an  order  under  this  part  of  this  Act,  and 
all  oysters  being  in  or  on  any  private  oyster  bed  which  is  owned 
by  any  person  independently  of  this  Act,  and  is  sufficiently  marked 
out  or  sufficiently  known  as  such,  shall  be  the  absolute  property  of 
the  grantees,  or  of  such  owner  as  the  case  may  be,  and  in  all  courts 
*of  law  and  equity,  and  elsewhere,  and  for  all  purposes,  civil  r:(:Koi 
or  criminal,  or  other,  shall  be  deemed  to  be  in  the  actual  pos-  ^ 
session  of  the  grantees  and  such  owner  respectively. 

By  s.  52,  All  oysters  and  mussels  removed  by  any  person  from  an 
oyster  or  mussel  bed  within  the  limits  of  any  such  several  fishery, 
and  all  oysters  removed  by  any  person  from  any  such  private  oyster 
bed,  and  not  either  sold  in  market  overt  or  disposed  of  by  or  under 
the  authority  of  the  grantees  or  owner  (as  the  case  may  be),  shall  be 
the  absolute  property  of  the  grantees  and  owners  respectively,  and  in 
all  courts  of  law  and  equity,  and  elsewhere,  and  for  all  purposes,  civil, 
criminal,  or  other,  the  absolute  right  to  the  possession  thereof  shall  be 
deemed  to  be  in  the  grantees  and  owners  respectively. 

By  s.  55,  When  two  or  more  oyster  or  mussel  beds  or  fisheries 
belonging  to  diiferent  proprietors  are  contiguous  to  each  other,  and 
any  proceeding  by  indictment  or  otherwise  is  taken  against  any  person 
for  stealing  oysters  or  mussels  from  any  bed  formed  under  an  order 
made  in  pursuance  of  this  part  of  this  Act,  or  for  stealing  oysters 
from  any  bed  formed  independently  of  this  Act,  it  shall  be  sufficient 
in  alleging  and  proving  the  property  and  lawful  possession  of  the 
oysters  or  mussels  stolen,  and  the  place  from  which  they  were  stolen, 
to  allege  and  prove  that  they  were  the  property  of,  and  in  the  lawful 
possession  oi^  one  or  other  of  such  proprietors,  and  were  stolen  from 
one  or  other  of  such  contiguous  beds  or  fisheries. 

As  to  destroying  the  dams  of  fish  ponds,  etc.,  see  tit.  "  Sea  and 
River  Banks,  etc." 

As  to  poisoning  fish,  see  tit.  "  Poison." 


686  FIXTURES. 


^532] 


♦FIXTURES. 


At  common  law  larceny  could  not  be  committed  of  things  which 
were  attached  to  land,  or  which  belonged  to  it,  as  trees,  grass,  bushes, 
bridges,  stones,  the  lead  of  a  house,  and  the  like.  1  Hale,  P.  C.  510; 
2  East,  P.  C.  587 ;  and  this  is  said  to  extend  not  only  to  things  actually 
attached  to  the  realty,  but  to  things  savoring  of  and  belonging  to 
the  realty,  as  title  deeds.  R.  v.  Westbeer,  1  Lea.  12  ;  R.  v.  AValker, 
1  Moo.  C.  C.  155.  But  this  would  probably  not  now  be  extended,  as 
it  has  fre((uently  been  held  that  if  these  things  be  severed  from  the 
freehold,  as  wood  cut,  grass  in  cocks,  stones  dug  out  of  a  quarry,  etc., 
then  felony  may  be  committed  by  stealing  them,  for  then  they  are 
personal  goods.  So  if  a  man  came  to  steal  trees,  or  the  lead  of  a 
church,  and  severed  it,  and  after  about  an  hour's  time  came  and 
fetched  it  away,  this  was  held  felony,  because  the  act  was  not  con- 
tinued, but  interpolated,  and  in  that  interval  the  property  lodged  in 
the  right  owner  as  a  chattel  ;  and  so  with  regard  to  corn  standing  on 
the  ground,  for  that  is  a  chattel  personal.  1  Hale,  P.  C.  510.  ''  If," 
says  Gibbs,  C.  J.,  "  a  thief  severs  a  copper,  and  instantly  carries  it 
away,  it  is  no  felony  at  common  law,  yet  if  he  lets  it  remain  after  it 
is  severed  any  time,  then  the  removal  constitutes  a  felony,  if  he 
comes  back  and  takes  it ;  and  so  of  a  tree  which  has  been  some  time 
severed."  Lee  v.  Ridson,  7  Taunt.  191.  The  rule  on  this  subject  is 
thus  stated  by  the  criminal  law  commissioners  :  "  Although  a  thing 
be  part  of  the  realty,  or  be  any  annexation  to,  or  unsevered  produce 
of  the  realty,  yet  if  any  person  sever  it  from  the  realty  with  intent  to 
steal  it,  after  an  interval,  which  so  separates  the  acts  of  severance 
and  removal  that  they  cannot  be  considered  as  one  continued  act, 
the  thing  taken  is  a  chattel,  the  subject  of  theft,  notwithstanding  such 
previous  connection  with  the  realty.  If  any  parcel  of  the  realty,  or 
any  annexation  to  or  unsevered  produce  of  the  realty  be  severed, 
otherwise  than  by  one  who  afterwards  removes  the  same,  it  is  the 
subject  of  theft,  notwithstanding  it  be  stolen  instantly  after  that 
severance."  1st  Rep.  p.  11.  It  seems  this  must  be  taken  to  mean, 
that  it  is  larceny  if  a  thing  is  severed  and  the  party  severing  has  gone 
away  and  abandoned  all  kind  of  possession,  and  afterwards,  when 
liis  wrongful  possession  has  ceased,  he  comes  again  and  resumes  it ; 
but  a  mere,  interval  of  time,  during  which  there  was  no  full  possession 
by  the  wrong-doer,  would  not  render  a  subsequent  carrying  awav 
larceny.  Per  Blackburn,  J.,  R.  v.  Townley,  L.  R.  1  C.  C.  R.  315  ;  40 
L.  J.,  M.  C.  144.  In  the  alDOve  case  some  poachers  killed  rabbits,  and 
deposited  them  on  the  land  where  they  had  killed  them.  One  of  the 
poachers  afterwards  returned  and  carried  the  rabbits  away.  It 
was  found  as  a  fact  that  the  poachers  had  no  intention  of  abandoning 


FIXTURES.  687 

the  rabbits,  but  only  deposited  them  for  convenience.  It  was  held 
that  the  prisoner  who  subsequently  removed  them  could  not  be 
convicted  of  larceny.  To  remedy  the  inconvenience  which  arose 
from  this  state  of  the  law,  it  has  been  made  larceny  in  certain  cases 
*to  steal  things  annexed  to  a  part  of  the  freehold.  These  enact-  r*  r  qo 
ments  will  now  be  stated.  L  ^'^^ 

By  the  24  &  25  Vict.  c.  96,  s.  31,  replacing  the  7  &  8  Geo.  4  c.  29, 
B.  44,  "  whosoever  shall  steal,  or  shall  rip,  cut,  sever,  or  break  with  in- 
tent to  steal,  any  glass  or  wood  work  belonging  to  any  buildino-  what- 
Boever,  or  any  lead,  iron,  copper,  brass,  or  other  metal,  or  any  utensil 
or  fixture,  whether  made  of  metal  or  other  material,  or  of  both,  re- 
spectively fixed  in  or  to  any  building  whatsoever,  or  any  thing  made 
of  metal  fixed  in  any  land  being  private  property,  or  for  a  fence  to  any 
dwelling-house,  garden  or  area,  or  in  any  square  or  street,  or  in  any 
place  dedicated  to  public  use  or  ornament,  or  in  any  burial  ground 
shall  be  guilty  of  felony,  and  being  convicted  thereof  shall  be  liable 
to  be  punished  as  in  the  case  of  simple  larceny  ;  and  in  the  case  of 
any  such  thing  fixed  in  any  such  square,  street,  or  place  as  afore- 
said, it  shall  not  be  necessary  to  allege  the  same  to  be  the  property  of 
any  person." 

See,  as  to  the  punishment,  24  &  25  Vict.  c.  96,  ss.  4,  7,  8,  9,  infra, 
tit.  "  Larceny."  As  to  the  proof  of  previous  summary  convictions  for 
larceny,  see  24  &  25  Vict.  c.  96,  s.  112,  Id.  As  to  venue,  see  24  & 
25  Vict.  c.  96,  s.  114,  Id. 

Upon  the  repealed  statute,  4  Geo.  2,  c.  32,  it  was  held,  that  a  per- 
son who  procured  possession  of  a  house  imder  a  written  agreement 
between  him  and  the  landlord,  with  a  fraudulent  intention  to  steal  the 
fixtures  belonging  to  the  house,  was,  in  stealing  the  lead  affixed  to  the 
house,  guilty  of  a  felony  within  the  statute.  R.  v.  Munday,  2  Leach. 
850  ;  2  East,  P.  C.  594. 

With  regard  to  what  shall  be  deemed  a  building  within  this  act,  it 
was  held  (upon  the  4  Geo.  2,  which,  after  specifying  certain  buildings, 
used  the  words,  "  any  other  building  whatever  "),  that  a  summer-house, 
half  a  mile  from  the  dwelling-house,  was  within  the  Act.  R.  v.  Nor- 
ris,  Russ.  &  Ry.  69.  So  upon  the  same  statute  a  majority  of  the 
judges  determined  that  a  church  was  within  the  meaning  of  the  Act. 
R.  V.  Parker,  2  East,  P.  C.  592.  But  it  was  agreed  that  the  property 
in  lead  affixed  to  a  church  could  not  be  laid  to  be  either  in  the  church- 
wardens, or  in  the  parishioners  or  inhabitants.  Id.  The  new  statute, 
by  omitting  to  specify  any  particular  building,  and  using  only  the 
words,  "any  building  whatsoever,"  has  removed  the  doubts  which 
gave  rise  to  the  above  decisions.  An  unfinished  building  intended  as 
a  cart-shed  which  was  boarded  up  on  all  its  sides,  and  had  a  door  with 
a  lock  to  it,  and  the  frame  of  a  roof  ready  for  thatching  with  loose 
gorse  thrown  on,  was  held  by  Littledale,  J.,  to  be  a  building  within 
the  above  section.     R.  v.  Worrall,  7  C.  &  P.  516. 

Upon  the  words,  "any  square,  street,  or  other  place  dedicated  to 
public  use  or  ornament,"  it  has  been  held  that  a  churchyard  comes 
within  the  meaning  of  the  Act.     Pe?'  Bosanquet,  J.,  R.  v.  Blick,  4  C. 


688  FIXTURES. 

&  P.  377,  19  E.  C.  L.;  see  also  R.  v.  Reece,  2  Russ.  Cri.  212,  5th  ed.; 
and  a  similar  decision  with  respect  to  a  tombstone  in  a  churchyard,  in 
R.  V.  Jones,  2  Russ.  Cri.  211,  5th  ed. 

The  prisoner  was  indicted  (in  the  usual  form)  for  stealing  lead 
affixed  to  a  building.  The  jury  found  him  guilty  of  stealing  the  lead 
when  lying  severed,  but  not  of  stealing  it  when  fixed.  Tindale,  C.  J., 
after  conferring  with  Vaughan,  B.,  held  that  the  prisoner  could  not 
be  found  guilty  of  a  simple  larceny  on  such  an  indictment,  and  directed 
a  verdict  of  not  guilty  to  be  entered,  R.  v.  Gooch,  8  C.  <fe  P.  293,  34 
E.  C.  L. 

^^Idl       *^^  indictment  for  stealing  a  copper  pipe  fixed  to  the  dwel- 
-•   ling-house  of  A.  and  B.,  is  not  supported  by  proof  of  stealing 
a  pipe  fixed  to  two  rooms,  of  which  A.  and  B.  are  separate  tenants,  in 
the  same  house.     R.  v.  Finch,  1  Moo.  C.  C.  418. 

A  copper  sun-dial  fixed  on  the  top  of  a  wooden  post  standing  in  a 
churchyard  is  "metal  fixed  to  land"  within  the  above  section.  R.  v. 
Jones,  Dears.  &  B.  555  ;  27  L.  J.,  M.  C.  171.  The  prisoner  was  in- 
dicted for  stealing  lead  fixed  to  a  wharf,  and  it  was  proved  that  the 
wharf  was  made  of  bricks  and  timber ;  it  was  held  that  it  was  suffi- 
ciently alleged  and  proved  that  the  lead  was  affixed  "  to  a  building.'* 
R.  V.  Rice,  Bell,  C.  C.  87  ;  28  L.  J.,  M.  C.  64. 


FOECIBLE  ENTRY  AND   DETAINER.  689 


*FORCIBLE  ENTRY  AND  DETAINER. 


[*535 


PAOE 

Offence  at  common  law        ....«•.,,  535 

by  statute i        ,  535 

Proof  of  the  entry  or  detainer    .         .•»«,,,  536 

force  and  violence      .         .        •        .        ,         ,        ,  537 

Proof  that  the  detainer  was  forcible  ....,,,  537 

of  the  possession  upon  which  the  entry  was  made      .        ,  638 

that  the  offence  was  committed  by  the  defendant  .        ,        ,  539 

Award  of  restitution 539 

OflFence  at  common  law.  It  seems  that  entering  with  such  force 
and  violence  into  lands  or  tenements,  as  to  exceed  a  bare  trespass,  was 
an  offence  indictable  at  common  law.  Wilson's  case,  8  T.  R.  357  ;  1 
Russ.  on  Cri.  404,  5th  ed.'  But  against  this  offence  provision  has 
been  made  by  various  statutes. 

Offence  by  statute.  The  first  enactment  against  forcible  entries  is 
that  of  5  Ric.  2,  st.  1.  c.  7,  which  merely  forbids  them. 

By  the  15  Ric.  2,  c.  2,  it  is  accorded  and  assented,  that  the  ordi- 
nances and  statutes,  made  and  not  repealed,  of  them  that  make  entries 
with  strong  hand  into  lands  and  tenements  or  other  possessions  what- 
soever, and  them  hold  with  force,  and  also  of  those  that  make  insur- 
rections, or  great  ridings,  riots,  routs  or  assemblies  in  disturbance  of 
the  peace  or  of  the  common  law,  or  in  affray  of  the  people,  shall  be 
holden  and  kept,  and  fully  executed,  joined  to  the  same  that  at  all 
times  that  such  forcible  entry  shall  be  made,  and  complaint  thereof 
Cometh  to  the  justices  of  the  peace,  or  to  any  of  them,  that  the  same 
justices  or  justice  take  sufficient  power  of  the  county,  and  go  to  the 
place  where  such  force  is  made ;  and  if  they  find  any  that  hold  such 
place  forcibly  after  such  entry  made,  they  shall  be  taken  and  put  in  the 
next  gaol,  there  to  abide  convict  by  the  record  of  the  same  justices  or 
justice,  until  they  have  made  fine  and  ransom  to  the  king. 

This  statute  was  followed  by  that  of  8  Hen.  6,  c.  9,  which,  after 
reciting  the  15  Rich.  2,  c.  2,  enacts,  for  that  the  said  statute  doth  not 
extend  to  entries  in  tenements  in  peaceable  manner,  and  after  holden 
with  force,  nor  if  the  persons  which  enter  with  force  into  lands  and 
tenements  be  removed  and  voided  before  the  coming  of  the  said  jus- 
tices or  justice  as  before,  nor  any  pain  ordained  if  the  sheriff  do  not 
obey  the  commandments  and  precepts  of  the  said  justices,  for  to  exe- 
cute the  said  ordinances,  many  wrongful  and  forcible  entries  be  daily 
made  in  lands  and  tenements,  by  such  as  have  no  right,  and  also 
divers  gifts,  feoffments  and  discontinuences,  sometimes  made  to  lords 

'  An  entry  on  land  merely  to  cut  and  take  away  the  grass  thereon,  and  not  for  the 
purpose  of  taking  possession,  is  not  forcible  entry  and  detainer.     Merrill  v,  Forbes, 
23  Cal.  379 ;  Bell  v.  Cowan,  34  Mo.  251.    S. 
44 


690  V  FORCIBLE   ENTRY   AND   DETAINER. 

and  other  puissant  persons,  and  extortioners,  within  the  said  counties 
where  they  may  be  conversant,  to  have  maintenance,  and  sometimes 
to  such  persons  as  to  be  unknown  to  them  so  put  out,  to  the  intent 
^_f.„-|  *to  delay  and  defraud  such  rightful  possessors  of  their  right 
-■  and  recovery  forever,  to  the  final  disherison  of  divers  of  the 
king's  faithful  liege  people,  and  likely  daily  to  increase,  if  due  remedy 
be  not  provided  in  this  behalf,  enacts,  that  from  henceforth,  where 
any  doth  make  any  forcible  entry  on  lands  and  tenements,  or  other 
possessions,  or  them  hold  forcibly  after  complaint  thereof  made  within 
the  same  county  where  such  entry  is  made,  to  the  justices  of  the  peace, 
or  to  one  of  them,  by  the  party  grieved,  that  the  justices  or  justice  so 
warned  within  a  convenient  time  shall  cause,  or  one  of  them  shall 
cause,  the  said  statutes  duly  to  be  executed,  and  that  at  the  cost  of  the 
party  so  grieved.     (See  R.  v.  Wilson,  post,  p.  538.) 

By  section  9  of  this  statute,  the  justices  are  directed  to  re-seize  the 
lands  or  tenements  entered  upon,  and  to  put  the  party  put  out  into  full 
possession  of  the  same.  But  it  is  provided  by  s.  7,  that  they  who 
keep  their  possession  with  force,  in  any  lands  and  tenements  whereof 
they  or  their  ancestors,  or  they  whose  estate  they  have  in  such  lands 
and  tenements  have  continued  their  possession  in  the  same,  for  three 
years  or  more,  be  not  endamaged  by  the  statute.  This  proviso  is  en- 
forced by  the  31  Eliz.  c.  ]  1,  s.  3,  which  declares  that  no  restitution 
shall  be  made,  if  the  person  indicted  has  had  the  occupation  or  been 
in  quiet  possession  for  the  space  of  three  whole  years  together,  next 
before  the  day  of  the  indictment  found,  and  his  estate  therein  not 
ended  or  determined. 

In  order  to  extend  the  remedy  for  forcible  entries  upon  other  estates 
than  those  of  freehold,  it  was,  by  21  Jac.  1,  c.  15, enacted,  "that  such 
judges,  justices,  or  justices  of  the  peace  as,  by  reason  of  any  Act  or 
Acts  of  parliament  now  in  force,  are  authorized  and  enabled,  upon 
inquiry,  to  give  restitution  of  possession  unto  tenants  of  any  estate  of 
freehold,  of  their  land  or  tenements  which  shall  be  entered  upon  with 
force,  or  from  them  withholden  by  force,  shall  by  reason  of  this  present 
Act  have  the  like  and  the  same  authority  and  ability  from  henceforth 
(upon  indictment  of  such  forcible  entries,  or  forcible  withholding  before 
them  duly  found),  to  give  like  restitution  of  possession  unto  tenants 
for  term  of  years,  tenants  by  copy  of  court-roll,  guardians  by  knight's 
service,  tenants  by  eleffit,  statute-merchant  and  staple,  of  lands  or  tene- 
ments by  them  so  holden,  which  shall  be  entered  upon  by  force,  or 
holden  from  them  by  force." 

Upon  a  prosecution  under  these  statutes  the  prosecutor  must  prove, 
1,  the  entry  or  detainer;  2,  that  it  was  forcible;  3,  the  possession 
upon  which  the  entry  was  made ;  and  4,  that  it  was  made  by  the 
defendant. 

Proof  of  the  entry  or  detainer.  A  forcible  entry  or  detainer  is 
committed  by  violently  taking  or  keeping  possession  of  lands  or  tene- 
ments by  menaces,  force  and  arms,  and  without  the  authority  of  law. 
4  Bla.  Com.  248.     It  must  be  accompanied  with  some  circumstances 


FORCIBLE   ENTRY    AND    DETAINER.  G91 

of  actual  violence  or  terror,  and  therefore  an  entry  which  has  no  other 
force  than  such  as  is  implied  by  law  in  every  trespass,  is  not  within 
the  statutes.  Hawk.  P.  C.  b.  1,  c.  64,  s,  25.  The  entry  may  be  vio- 
lent, not  only  in  respect  to  violence  actually  done  to  the  person  of  a 
man,  as  by  beating  him  if  he  refuses  to  relinquish  possession ;  but 
also  in  respect  to  any  other  kind  of  violence  in  the  entry,  as  by 
breaking  open  the  doors  of  a  house,  whether  any  person  be  within  or 
*out,  especially  if  it  be  a  dwelling-house  ;  and  perhaps  by  acts  r*(-o7 
of  outrage  after  the  entry,  as  by  carrying  away  the  party's  •- 
goods.     Id.  s.  26  ;  see  3  Burr.  1702  (n). 

But  if  a  person  who  pretends  a  title  to  lands,  barely  goes  over 
them,  either  with  or  without  a  great  number  of  attendants  armed  or 
unarmed,  in  his  way  to  the  church  or  market,  or  for  such  like  pur- 
poses, without  doing  any  act  which  expressly  or  impliedly  amounts 
to  a  claim  to  such  lands,  this  is  not  an  entry  within  the  meaning  of 
the  statutes.  Hawk.  P.  C  b.  1  c.  64,  s.  20.  Drawing  a  latch  and 
entering  a  house  is  said  not  to  be  a  forcible  entry,  according  to  the 
better  opinion.  Id.  s.  26  ;  Bac.  Abr.  "  Forcible  Entry  "  (B) ;  1  Russ. 
Cri.  410,  5th  ed. 

Proof  of  the  force  and  violence.  Where  the  party,  either  by  his 
behavior  or  speech,  at  the  time  of  his  entry,  gives  those  who  are  in 
possession  just  cause  to  fear  that  he  will  do  them  some  bodily  hurt  if 
they  do  not  give  way  to  him,  his  entry  is  esteemed  forcible,  whether 
he  cause  the  terror  by  carrying  with  him  such  an  unusual  number  of 
servants,  or  by  arming  himself  in  such  a  manner  as  plainly  to  inti- 
mate a  design  to  back  his  pretensions  by  force,  or  by  actually  threat- 
ening to  kill,  maim,  or  beat  those  who  continue  in  possession,  or  by 
making  use  of  expressions  which  plainly  imply  a  purpose  of  using 
force  against  those  who  make  resistance.  Hawk.  P.  C.  b.  1,  c.  64, 
s.  27.  But  it  seems  that  no  entry  is  to  be  judged  forcible  from  any 
threatening  to  spoil  another's  goods,  or  to  destroy  his  cattle,  or  to  do 
him  any  similar  damage  which  is  not  personal.  Id.  s.  28  ;  sed  vide 
supra. 

It  is  not  necessary  that  there  should  be  any  one  assaulted  to  con- 
stitute a  forcible  entry ;  for,  if  persons  take  or  keep  possession  of 
either  house  or  land,  with  such  numbers  of  persons  and  show  of  force 
as  are  calculated  to  deter  the  rightful  owner  from  sending  them 
away,  and  resuming  his  own  possession,  that  is  sufficient  in  point  of 
law  to  constitute  a  forcible  entry,  or  a  forcible  detainer.  Per  Abbott, 
C.  J.,  Milner  v.  Maclean,  2  C.  &  P.  18,  12  E.  C.  L.  An  indictment 
for  a  forcible  entry  cannot  be  supported  by  evidence  of  a  mere  tres- 
pass, but  there  must  be  proof  of  such  force,  or  at  least  such  kind  of 
force  as  is  calculated  to  prevent  any  resistance.  Per  Lord  Tenterden, 
C.  J.,  R.  V.  Smyth,  5  C.  &  P.  201,  24  E.  C.  L. 

Proof  that  the  detainer  was  forcible.  The  same  circumstances  of 
violence  or  terror  which  make  an  entry  forcible  will  make  a  detainer 
forcible  also  ;  therefore,  whoever  keeps  in  his  house  an  unusual  num- 


692  FORCIBLE   ENTRY   AND   DETAINER. 

ber  of  people,  or  unusual  weajjons,  or  threatens  to  do  some  bodily 
hurt  to  the  former  possessor  if  he  return,  shall  be  adjudged  guilty  of 
a  forcible  detainer,  though  no  attempt  is  made  to  re-enter  ;  so,  also,  it 
is  said,  if  he  place  men  at  a  distance  from  the  house,  to  assault  any 
one  who  shall  attempt  to  make  an  entry  :  but  barely  refusing  to  go 
out  of  a  house,  and  continuing  therein  in  despite  of  another,  is  not  a 
forcible  detainer.  Hawk.  P.  C.  b.  1,  c.  64,  s.  30.  So  where  a  lessee, 
at  the  end  of  his  term,  keeps  arms  in  his  house  to  prevent  the  entry  of 
the  lessor,  or  a  lessee  at  will  retains  possession  with  force,  after  the 
determination  of  the  will  :  these  are  forcible  detainers.  Com.  Dig. 
Fore.  Det.  (B.  1). 

The  statute,  15  Kic.  2,  only  gave  a  remedy  in  cases  of  forcible 
detainer,  where  there  had  been  a  previous  forcible  entry ;  but  the 
*'i'^sl  *st^^ute  8  Hen.  6,  c.  9,  gives  a  remedy  for  forcible  detainer  after 
^  a  previous  unlawful  entry  ;  for  the  entry  may  be  unlawful, 
though  not  forcible.  R.  v.  Oakley,  4  B.  &  Ad.  307,  24  E.  C.  L.  But 
it  does  not  hence  follow  that  the  statute  8  Hen,  6  does  not  apply  to 
the  case  of  a  tenant  at  will,  or  for  years,  holding  over  after  the  will  is 
determined,  or  the  term  expired  ;  because  the  continuance  in  posses- 
sion afterwards  may  amount,  in  judgment  of  law,  to  a  new  entry.  Per 
Parke,  J.,  Id.  p.  312,  citing  Hawk.  P.  C.  b.  1,  c.  64,  s.  34. 

A  conviction  for  a  forcible  detainer  is  bad,  if  it  only  states  that  the 
prosecutor  complained  to  the  justices  of  an  entry  and  unlawful 
expulsion  and  forcible  detainer,  and  that  they  personally  came  and 
found  the  defendant  forcibly  detaining  the  premises,  whereupon 
they  convict  him,  etc.  For  the  justices  cannot  know  by  their  view 
without  evidence  that  the  detainer  was  unlawful,  or  that  there  had 
been  an  unlawful  entry.  Semble,  that  the  conviction  ought  to  show 
that  the  defendant  was  summoned,  or  had  otherwise  an  opportunity 
to  defend  himself.  Held,  also,  that  the  court  was  bound  to  award  a 
re-restitution,  as  a  consequence  of  quashing  the  conviction  without 
inquiring  into  the  legal  or  equitable  claims  of  the  respective  parties. 
R.  V.  Wilson,  3  A.  &  E.  817,  30  E.  C.  L.;  Attwood  v.  Joliffe,  3  New 
Sess.  Cas.  116. 

Proof  of  the  possession  upon  which  the  entry  was  made.  With 
regard  to.  the  kind  of  entry  in  respect  of  which  a  person  may  be 
guilty  of  a  forcible  entry,  it  is  said  by  Hawkins  to  be  a  general  rule, 
that  a  person  may  be  indicted  for  a  forcible  entry  into  such  incor- 
poreal hereditaments,  for  w^hich  a  writ  of  entry  will  lie  either  at 
common  law,  as  for  rent,  or  by  statute,  as  for  tithes ;  but  that  there 
is  no  good  authority  that  such  an  indictment  will  lie  for  a  common 
or  an  office.  So  no  violence  offered  in  respect  of  a  way  or  other 
easement  will  make  a  forcible  entry.  Hawk.  P.  C.  b.  1,  c.  64,  s.  31. 
Nor  can  a  person  be  convicted  under  the  15  Ric.  2,  of  a  detainer 
of  any  tenements  into  which  he  could  not  have  made  a  forcible  entry. 
Id. 

It  is  said  by  HaAvkins,  that  it  seems  clear  that  no  one  can  come 
witMa*  tJie  intention  of  the  statutes,  by  any  force  whatsoever  done 


FORCIBLE    ENTRY    AND   DETAINER.  693 

by  him  on  entering  into  a  tenement  whereof  he  himself  had  the 
sole  and  lawful  possession,  both  at  and  before  the  time  of  such 
entry,  as  by  breaking  open  the  door  of  his  own  dwelling-house,  or  of 
a  castle,  which  is  his  own  inheritance,  but  forcibly  detained  from  him 
by  one  who  claims  the  bare  custody  of  it,  or  by  forcibly  enterino- 
into  the  land  of  his  own  tenant  at  will.  The  learned  writer  has 
added  a  "  sed  qucere  "  to  this  passage,  and  Lord  Kenyon  has  observed 
that  perhaps  some  doubt  may  hereafter  arise  respecting  what  Mr. 
Serjeant  Hawkins  says,  that  at  common  law  the  party  may  enter 
with  force  into  that  to  which  he  has  a  legal  title.  R.  v.  Wilson  8 
T.  R.  361. 

There  seems  now  to  be  no  doubt  that  a  party  may  be  guilty  of  a  forcible 
entry,  by  violently  and  with  force  entering  into  that  to  which  he  has  a 
legal  title.  Newton  v.  Harland,  1  M.  &  G.  644,  39  E.  C.  L.;  1  Russ. 
Cri.  405  (g),  5th  ed.  See  also  R.  v.  Studd,  14  W.  R.  806 ;  14  L.  T.,  il. 
S.  633.  In  Newton  v.  Harland,  supra,  the  judges  thought  that  a  land- 
lord might  be  guilty  of  a  forcible  entry  after  the  expiration  of  his 
tenant's  term  both  at  common  law  and  under  the  statutes ;  but  that 
*possession  so  obtained  might,  nevertheless,  be  legal  ;  see  r^f-on 
Davison  v.  Wilson,  11  Q.  B.  890 ;  Burling  v.  Read,  Id.  904.      L  ^^^ 

The  possession  of  a  joint  tenant,  or  tenant  in  common,  is  such  a 
possession  as  may  be  the  subject  of  a  forcible  entry  or  detainer  by  his 
co-tenant ;  for  though  the  entry  of  the  latter  be  lawful  per  mie  et  per 
tout,  so  that  he  cannot  in  any  case  be  punished  for  it  in  an  action  of 
trespass,  yet  the  lawfulness  of  the  entry  is  no  excuse  for  the  violence. 
Hawk.  P.  C.  b.  1  c.  64,  s.  33. 

Upon  an  indictment  founded  on  the  8  Hen.  6,  it  must  be  shown 
that  the  entry  was  on  a  freehold  ;  and  if  founded  on  the  21  Jac.  1, 
that  it  was  upon  a  leasehold,  etc.,  according  to  that  statute.  R.  v. 
Wannop,  Sayer,  142.  On  a  prosecution  for  a  forcible  entry  on  the 
possession  of  a  lessee  for  years,  it  is  sufficient  to  prove  that  such  lessee 
was  possessed,  although  the  indictment  allege  that  the  premises  were 
his  freehold.  R.  v.  Lloyd,  Cald.  415.  Proof  that  the  party  holds 
colorably,  as  a  freeholder  or  leaseholder,  will  suffice  ;  for  the  court  will 
not,  on  the  trial,  enter  into  the  validity  of  an  adverse  claim,  which 
the  party  ought  to  assert  by  action,  and  not  by  force.  Per  Vaughan, 
B.,  R.  V.  Williams,  Talf.  Dick.  Sess.  239. 

Proof  that  the  offence  was  committed  by  the  defendant.  This 
offence  may  be  committed  by  one  person  as  well  as  by  several.  Hawk. 
P.  C.  b.  1,  c.  64,  s.  29.  All  who  accompany  a  man  when  he  makes  a 
forcible  entry  will  be  adjudged  to  enter  with  him,  whether  they  actually 
come  upon  the  land  or  not.  Id.  s.  22.  So  also  with  those  who,  hav- 
ing an  estate  in  land  by  a  defeasible  title,  continue  by  force  in  2:>os- 
session,  after  a  claim  made  by  one  who  has  a  right  of  entry.  Id. 
s.  23.  But  where  several  come  in  company  with  one  who  has  a  right 
to  enter,  and  one  of  the  company  makes  a  forcible  entry,  that  is  not 
a  forcible  entry  in  the  others.  3  Bac.  Abr.  "  Forcible  Entry  "  (B). 
And  a  person  who  barely  agrees  to  a  forcible  entrv  made  to  his  use, 


694  FORCIBLE   ENTRY   AND   DETAINER. 

without  his  knowledge  or  privity,  is  not  witliin  the  statutes,  because 
he  no  way  concurred  in,  or  promoted  the  force.  Hawk.  P.  C  b.  1,  c. 
64,  s.  24. 

An  infant  or  feme  covert  may  be  guilty  of  a  forcible  entry,  for  actual 
violence  done  by  such  party  in  person ;  but  not  for  violence  done  by 
others  at  their  command,  for  such  command  is  void.  A  feme  covert, 
it  is  said,  may  be  imprisoned  for  such  offence,  though  not  an  infant, 
because  he  shall  not  be  subject  to  corporal  punishment  by  force  of  the 
general  words  of  any  statute  in  which  he  is  not  expressly  named. 
Hawk.  P.  C.  b.  1,  c.  64,  s.  35.  A  feme  covert  may  be  guilty  of  a 
forcible  entry,  by  entering  with  violence  into  her  husband's  house.  R. 
V.  Smyth,  5C.  &  P.  201,  24  E.  C.  L. 

Award  of  restitution.  The  court  in  which  the  indictment  is  found, 
or  the  Court  of  King's  Bench  upon  the  removal  thither  of  the  indict- 
ment by  certiorari,  has  power  on  the  conviction  of  the  defendant  to 
award  restitution  to  the  party  upon  whose  possession  the  entry  has 
been  made.  Hawk.  P.  C.  b.  1,  c.  64,  ss.  49,  50,  51.  Though  by  the 
provisoes  in  the  statutes  of  Hen.  6  and  James  1 ,  the  defendants  may 
set  up  a  jwssession  of  three  years  to  stay  the  award  of  restitution. 
Id.  s.  53.  A  supersedeas  of  the  award  of  restitution  may  be  granted 
by  the  same    court    that    made    the    award.      Id.    s.    61.     And    a 


^540] 


*re-restitution  may  be  awarded  by  the  King's  Bench.      Id. 

s.  GCy.     See  R.  v.  Wilson,  ante,  p.  538. 
Before  conviction  it  is  in  the  discretion  of  the  judge  of  assize  to 
award  a  restitution  or  not,  although  a  true  bill  has  been  found  by  the 
grand  jury  for  a  forcible  entry.     R.  v.  Harland,  2  Lew.  C.  C.  170; 
8  Ad.  &  Ed.  826,  35  E.  C.  L.;  1  P.  &  D.  93  •  2  M.  &  R.  141. 


FORGERY.  695 


♦FORGERY.  [*541 
AND  OFFENCES  CONNECTED  THEREWITH. 

PAGE 

Forgery  at  common  law       .........  542 

by  statute 544 

Forging  her  Majesty's  seals 544 

transfers  of  stock,  and  powers  of  attorney  relating  thereto  544 

Forging  Metropolitan  Consolidated  Stock 545 

Forging  stock  issued  under  National  Debt  Act        ....  645 
Personating  the  owner  of  stock,  and  transferring  or  receiving  divi- 
dends   546 

Forging  attestation  to  power  of  attorney  for  transfer  of  stock  .        ,  546 

Making  false  entries  in  books  of  the  public  funds  ....  547 

Clerks  of  the  bank  making  out  false  dividend  warrants    .        .        .  547 

Forging  East  India  securities 547 

East  India  loan  securities 548 

exchec^uer  bills,  bonds,  debentures,  etc.     ....  548 

Making  plates  in  imitation  of  those  used  tor  exchequer  bills,  etc.     .  548 

paper  in  imitation  of  that  used  for  exchequer  bills,  etc.    .  548 
Having  in  possession  paper,  plates  or  dies  used  for  exchequer  bills, 

etc 549 

Forging  bank  notes  and  bills 549 

Purchasing  or  receiving  or  having  forged  bank  notes  and  bills      .  549 
Making  or  having  mould  or  paper  for  forging  notes  of  banks  of  Eng- 
land or  Ireland 550 

Engraving  or  having  plate  or  paper  for  making  forged  notes    .        .  551 
Engraving  any  part  of  a  bank  note  or  bill,  or  using  or  having  any 

such  plate,  or  uttering  or  having  any  impression  thereof      ,        .  651 
Making  or  having  mould  for  making  paper  with  the  name  of  any 

banlcer  thereon,  or  making  or  having  such  paper        .        .        .  552 
Engraving  plates  for  foreign  bills  or  notes,  or  using  or  having  such 

plates,  or  uttering  or  having  any  impression  thereof  .        .        .  652 

Forging  deeds,  bonds,  etc 653 

wills 653 

bills  of  exchange  or  promissory  notes 553 

orders,  receipts,  etc.,  for  money  or  goods   ....  554 
Drawing,  making,  accepting,  endorsing,  or  signing  bills,  notes,  re- 
ceipts, etc.,  without  autliority       .......  554 

Obliterating  crossings  on  cheques 554 

Forging  debentures    .        .        » 555 

proceedings  of  courts  of  record 555 

copies  or  certificates  of  records,  process  of  courts  not  of  rec- 
ord, and  using  forged  process      ......  555 

instruments  made  evidence  by  act  of  parliament      .        .  556 

court  rolls 556 

register  of  deeds 556 

orders  of  justices,  recognizances,  affidavits,  etc.    .        .        .  557 
name  of  officer  of  any  court,  or  of  banks  of  England  or 

Ireland 557 

marriage  licence  or  certificate 557 

*Destroying,  altering,  or  forging  parish  registers,  and  giving  false  [*542 

certificates 557 

Making  false  entries  in  copies  of  register  sent  to  registrar         .        .  558 

Demanding  property  on  forged  instruments    .....  558 

Forging  instrument,  however  designated,  which  is  by  law  a  will, 

deed,  bill  of  exchange,  etc.    ........  559 

Forging  documents  purporting  to  be  made  abroad,  or  bills  of  ex- 
change, etc.,  payable  abroad 559 

Offences  triable  where  prisoner  apprehended 560 

Description  of  instruments  in  indictments  for  forgery    .        .        .  560 

engraving  .        .        .  560 


696  FORGERY. 

PAGE 

Intent  to  defraud  particular  persons  need  not  be  alleged  or  proved  560 

Interpretation  of  tlie  term  "  possession  "     , 561 

Punishment  of  forgery  under  statutes  not  repealed         ,         .         .  561 

Principals  in  the  second  degree,  and  accessories         ....  562 

Forging  seal,  stamp  or  signature  of  public  documents  .        .        .  562 

documents  made  evidence  by 

statute         ....  563 

Forging  trade-marks 563 

Forgery  in  other  cases 563 

What  amounts  to  forgery 565 

by  using  a  person's  own  name  .        .        .  566 
by  using  another  person's   or  a  fictitious 

name 566 

not  necessary  that  the  document   should 

be  perfect 569 

Proof  of  forging  transfer  of  stock 569 

personating  owner  of  stock        ......  570 

forging  a  bank  note 570 

engraving  part  of  a  note ,        .  672 

making  a  note 572 

forging  deeds 572 

wills 573 

bills  of  exchange 573 

undertakings,  warrants,  or  orders  for  the  payment 

of  money 577 

receipts •        .        .  581 

warrants,  orders,  and  requests  for  the  delivery  of 

goods -.        .  583 

destroying,  defacing,  or  injuring  registers.        .        .  584 

forging  county  court  process 584 

the  uttering,  disposing  of,  or  putting  off   ,        .        .  585 

the  intent  to  defraud 587 

party  intended  to  be  defrauded  ....  589 

the  falsity  of  the  instrument           ....  589 

Form  of  indictment 691 

Proof  with  regard  to  principals  and  accessories      ....  593 

of  guilty  knowledge 594 

Venue 595 

Forgery  at  common  law.  At  common  law  the  offence  of  forgery 
was  punishable  as  a  misdemeanor.  It  is  defined  by  Sir  W.  Blackstone 
as  "  the  fraudulent  making  or  altering  of  a  writing  to  the 
*^4'^1  *P''6Judice  of  another  man's  right ;"  4  Com.  247  ;  and  by  Mr. 
J  East,  as  "  a  false  making,  a  making  malo  animo,  of  any  written 
instrument  for  the  purpose  of  fraud  and  deceit."  2  East,  P.  C.  852. 
Forgery  consists  not  in  making  a  deed  which  has  a  false  statement  in 
it ;  but  in  making  an  instrument  appear  to  be  what  it  is  not.^  Per 
Blackburn,  J.,  in  R.  v.  Ritson,  L.  R.  1  C.  C.  R.  200 ;  39  L.  J.,  M. 
C.  10.     Expte.  Windsor,  34  L.  J.,  M.  C.  163. 

The  forgery  of  any  document,  whether  public  or  private,  with  in- 
tent to  defraud,  is  punishable  as  a  misdemeanor  at  common  law.  And 
in  R.  V.  Hodgson,  Dears.  &  B.  C.  C.  3 ;  25  L.  J.,  M.  C.  78,  the  court 
said  it  was  unnecessary  to  consider  whether  or  not  the  document  which 
the  prisoner  was  charged  with  forging  (a  diploma  of  the  College  of 
Surgeons)  was  of  a  public  nature  or  not,  because,  whether  it  was  or 

*  Forgery  is  the  alteration  of  a  deed  or  writing  in  a  material  part,  to  the  prejudice 
of  another,  as  well  as  when  the  whole  deed  or  writing  is  forged.  5  Strob.  58.  In  an 
indictment  for  forgery,  the  proof  was  that  the  defendant  wrote  a  promissory  note  for 
$141.26,  and  read  it  to  another,  who  was  unable  to  read,  as  a  note  for  $41.26,  and  in- 
duced him  to  sign  it  as  maker.  Held,  that  this  did  not  constitute  a  forgery.  Com- 
monwealth V.  Sankey,  22  Pa.  St.  390.  But  see  Clay  v.  Schwab,  1  Mich.  (N.  P.)  168.  S. 


FORGERY.  697 

was  not,  in  order  to  make  out  the  offence  there  must  have  been,  at  the 
time  of  the  instrument  being  forged,  an  intention  to  defraud  some  per- 
son. The  distinction,  therefore,  as  to  the  intent  to  defraud,  between 
the  forgery  of  public  and  private  documents  at  common  law,  which  has 
sometimes  been  drawn,  seems  to  be  of  little  importance.  If  any  other 
inference  is  to  be  drawn  from  the  passage  in  Hawk.  P.  C  b.  1,  c.  21, 
s.  11,  it  must  be  considered  as  overruled  by  this  case.  There  are  in- 
deed many  public  documents  the  forgery  of  which  is  made  punishable 
by  statute  as  a  criminal  offence  without  any  intent.  But  these  provi- 
sions in  no  way  affect  the  general  principle  of  law  just  stated  ;  on  the 
other  hand,  they  impliedly  recognize  it,  as,  had  it  been  otherwise,  they 
would,  many  of  them,  have  been  unnecessary. 

Though  doubts  were  formerly  entertained  on  the  subject,  it  is  now 
clear  that  forging  any  document,  with  a  fraudulent  intent,  and  Avhere- 
by  another  person  may  be  prejudiced,  is  within  the  rule.'  Thus,  after 
much  debate,  it  was  held  that  forging  an  order  for  the  delivery  of 
goods  was  a  misdemeanor  at  common  law.^  R.  v.  Ward,  Str.  747  ;  2 
Ld.  Raym.  1461.  And  the  same  was  held  by  a  majority  of  the  judges, 
with  regard  to  a  document  purporting  to  be  a  discharge  from  a  creditor 
to  a  gaoler,  directing  him  to  discharge  a  prisoner  in  his  custody.  R. 
V.  Fawcett,  2  East,  P.  C.  862.  R.  v.  Ward  is  considered  by  Mr.  East 
to  have  settled  the  rule,  that  the  counterfeiting  of  any  writing,  with  a 
fraudulent  intent,  whereby  another  may  be  prejudiced,  is  forgery  at 
common  law.     2  East,  P.  C.  861. 

Forgery  at  common  law  must  be  of  some  document  or  writing. 
Therefore  where  the  prisoner  was  indicted  for  forging  the  name  of  J. 
Linnell,  and  the  evidence  was  that  he  painted  it  in  the  corner  of  a 
picture,  with  intent  to  pass  off  the  picture  as  a  work  of  that  artist,  this 
was  held  not  to  be  a  forgery.  But  that,  if  money  had  been  obtained 
bv  the  fraud,  the  defendant  was  indictable  for  a  cheat  at  common  law. 
R.  V.  CIoss,  Dears.  &  B.  C.  C.  460 ;  27  L.  J.,  M.  C.  54.  So  where 
the  prisoner  caused  wrappers  to  be  printed  similar  to  those  of  another 
tradesman,  and  sold  in  them  a  composition  called  "  Berwick's  Baking 
Powder,"  but  caused  the  signature  and  the  notification  that  without 
such  signature  no  powder  was  genuine,  which  appeared  on  the  genuine 
wrappers,  to  be  omitted  :  it  was  held  that  this  was  no  forgery,  though 
the  jury  found  that  the  wrappers  were  procured  by  the  prisoner  with 
intent  to  defraud.  R.  v.  Smith,  Dears.  &  B.  C.  C.  566  ;  27  L.  J.,  M. 
C.  225.     And  see  now  the  25  &  26  Vict.  c.  88,  ss.  1,  2,  3,  4,  5. 

It  is  not  necessary  to  the  sustaining  an  indictment  for  forgery  at 
*common  law,  that  any  prejudice  should  in  fact  have  happened  r*t-j^j^ 
by  reason  of  the  fraud.^  R.  v.  Ward,  Str.  747  ;  2  Ld.  Raym.  L  ^'^^ 
1461.  Nor  is  it  necessary  that  there  should  be  any  publication  of  the 
forged  instrument.  2  East,  P.  C.  855,  951 ;  Russ.  on  Cri.  618, 
5th  ed. 

'  Ames's  Case,  2  Greenl.  365 ;  Penna.  v.  McKee,  Add.  33.    S. 
'  Commonwealth  v.  Ayer,  3  Cush.  150.     S. 
«  Arnold  v.  Cost,  8  GUI  &  Johns.  220.    S. 


698  FORGERY. 

It  is  not  forgery  fraudulently  to  procure  a  party's  signature  to  a 
document,  the  contents  of  which  have  been  altered  without  his  knowl- 
edge ;  R.  V.  Cliadwicke,  2  Moo.  &  R.  545  ;  or  fraudulently  to  induce 
a  person  to  execute  an  instrument  on  a  misrepresentation  of  its  con- 
tents. Per  Rolfe,  B.,  R.  v.  Collins,  MS.,  2  Moo.  &  R.  461.  This 
comes  under  another  class  of  offences,  and  is  especially  provided  for  by 
the  24  &  25  Vict.  c.  96,  s.  90 ;  supra,  p.  498. 

Forgery  by  statute.  By  several  statutes  certain  forgeries  have  been 
made  felonies,  and  the  punishment  increased.  Many  of  these  statutes 
were  consolidated  by  the  11  Geo.  4  &  1  Will.  4,  c.  66,  which  is 
now  repealed,  and  the  statutes  again  consolidated  by  the  24  &  25 
Vict.  c.  98. 

Forging  her  Majesty's  seals.  By  s.  1  of  that  Act,  "  whosoever 
shall  forge  or  counterfeit,  or  shall  utter,  knowing  the  same  to  be  forged 
or  counterfeited,  the  great  seal  of  the  United  Kingdom,  her  Majesty's 
privy  seal,  any  privy  signet  of  her  Majesty,  her  Majesty's  royal  sign 
manual,  any  of  her  Majesty's  seals  appointed  by  the  twenty-fourth 
article  of  the  union  between  England  and  Scotland  to  be  kept,  used, 
and  continued  in  Scotland,  the  great  seal  of  Ireland,  or  the  privy  seal 
of  Ireland,  or  shall  forge  or  counterfeit  the  stamp  or  impression  of  any 
of  the  seals  aforesaid,  or  shall  utter  any  document  or  instrument  what- 
soever, having  thereon  or  affixed  thereto  the  stamp  or  impression  of 
any  such  forged  or  counterfeited  seal,  knowing  the  same  to  be  the  stamp 
or  impression  of  such  forged  or  counterfeited  seal,  or  any  forged  or  coun- 
terfeited stamp  or  impression  made  or  apparently  intended  to  resemble 
the  stamp  or  impression  of  any  of  the  seals  aforesaid,  knowing  the  same 
to  be  forged  or  counterfeited,  or  shall  forge  or  alter,  or  utter,  knowing 
the  same  to  be  forged  or  altered,  any  document  or  instrument  having 
any  of  the  said  stamps  or  impressions  thereon  or  affixed  thereto,  shall 
be  guilty  of  felony,  and  being  convicted  thereof  shall  be  liable,  at  the 
discretion  of  the  court,  to  be  kept  in  penal  servitude  for  life,  or  for 
any  term  not  less  than  three  [now  five]  years,  or  to  be  imprisoned  for 
any  term  not  exceeding  two  years,  with  or  without  hard  labor,  and 
with  or  without  solitary  confinement." 

Forging  transfers  of  stock,  and  powers  of  attorney  relating 
thereto.  By  s.  2  "  whosoever  shall  forge  or  alter,  or  shall  offer,  utter, 
dispose  of,  or  put  off,  knowing  the  same  to  be  forged  or  altered,  any 
transfer  of  any  share  or  interest  of  or  in  any  stock,  annuity,  or  other 
public  fund  which  now  is  or  hereafter  may  be  transfemble  at  the  bank 
of  England  or  at  the  bank  of  Ireland,  or  of  or  in  the  capital  stock  of 
any  body  corporate,  company,  or  society  whicih  now  is  or  hereafter 
may  be  established  by  charter,  or  by,  under,  or  by  virtue  of  any  act 
of  parliament,  or  shall  forge  or  alter,  or  shall  offer,  utter,  dispose  of, 
or  put  off,  knowing  the  same  to  be  forged  or  altered,  any  power  of 
attorney  or  other  authority  to  transfer  any  share  or  interest  of  or  in 
any  such  stock,  annuity,  public  fund,  or  capital  stock,  or  to  receive 


FORGERY.  699 

any  dividend  or  money  payable  in  respect  of  any  such  share  or 
*interest,  or  shall  demand  or  endeavor  to  have  any  such  share  i-Hcr^K 
or  interest  transferred,  or  to  receive  any  dividend  or  money  L  '^'*^ 
payable  in  respect  thereof,  by  virtue  of  any  such  forged  or  altered 
power  of  attorney  or  other  authority,  knowing  the  same  to  be  forged 
or  altered,  with  intent  in  any  of  the  cases  aforesaid  to  defraud,  shall 
be  guilty  of  felony,  and  being  convicted  thereof,  shall  be  liable,  at  the 
discretion  of  the  court,  to  be  kept  in  penal  servitude  for  life,  or  for  any 
term  not  less  than  three  [now  five]  years,  or  to  be  imprisoned  for  any 
term  not  exceeding  two  years,  with  or  without  hard  labor,  and  with  or 
without  solitary  confinement."  Extended  to  Scotland  by  the  33  & 
34  Vict.  c.  58,  s.  7.  Extended  also  to  stock  under  the  Local  Authori- 
ties Loan  Act,  1875  (38  &  39  Vict.  c.  83.) 

Forging  Metropolitan  Consolidated  Stock.  By  the  32  &  33 
Vict.  c.  102,  s.  19,  all  consolidated  stock  is  to  be  deemed  to  be  capital 
stock  of  a  body  corporate  within  the  meaning  of  the  24  &  25  Vict. 
0.98. 

By  s.  20,  "  Any  person  who,  with  intent  to  defraud,  makes  any 
false  entry  in  or  alters  any  word  or  figure  in  any  of  the  said  books  for 
transfers,  or  in  any  manner  falsifies  any  of  the  said  books,  or  makes 
any  transfer  of  any  consolidated  stock  in  the  name  of  any  person  who 
is  not  the  true  owner  thereof,  shall  be  guilty  of  felony,  and  on  convic- 
tion shall  be  liable  to  penal  servitude  for  any  term  not  exceeding  four- 
teen years,  or  be  imprisoned  for  any  term  not  exceeding  two  years, 
with  or  without  hard  labor." 

By  s.  21,  clerks  and  servants  of  the  board  who,  with  intent  to  de- 
fraud, make  out  dividend  warrants,  etc.,  for  a  greater  amount  than 
that  to  which  the  person  who  receives  it  is  entitled,  are  guilty  of 
felony. 

Forging  stock  issued  under  National  Debt  Act,  or  any  former 
Act.  By  the  33  &  34  Vict.  c.  58,  s.  3,  "  If  any  person  forges  or 
alters,  or  offers,  utters,  disposes  of,  or  puts  off,  knowing  the  same  to 
be  forged  or  altered,  any  stock  certificate  or  coupon,  or  any  document 
purporting  to  be  a  stock  certificate  or  coupon,  issued  in  pursuance  of 
Part  5  of  the  National  Debt  Act,  1870,  or  of  any  former  Act,  or  de- 
mands or  endeavors  to  obtain  or  receive  any  share  or  interest  of  or  in 
any  such  stock,  as  defined  in  the  National  Debt  Act,1870,  or  to  receive 
any  dividend  or  money  payable  in  respect  thereof,  by  virtue  of  any 
such  forged  or  altered  certificate  or  coupon,  or  document  purporting  as 
aforesaid,  knowing  the  same  to  be  forged  or  altered,  with  intent  in 
any  of  the  cases  aforesaid  to  defraud,  he  shall  be  guilty  of  felony,  and 
being  convicted  thereof,  shall  be  liable,  at  the  discretion  of  the  court, 
to  be  kept  in  penal  servitude  for  life,  or  for  any  term  noi  less  than 
five  years,  or  to  be  imprisoned  for  any  term  not  exceeding  two  years, 
with  or  without  hard  labor,  and  with  or  without  solitary  confinement." 

By  s.  4,  "If  any  person  falsely  and  deceitfully  personates  any 
owner  of  any  share  or  interest  of  or  in  any  such  stock  as  aforesaid, 


700  FORGERY. 

or  of  any  such  stock  certificate  or  coupon  as  aforesaid,  and  thereby 
obtains  or  endeavors  to  obtain  any  sucli  stock  certificate  or  coupon, 
or  receives  or  endeavors  to  receive  any  money  due  to  any  such 
owner,  as  if  such  person  were  the  true  and  lawful  owner,  he  shall  be 
guilty  of  felony,  and  being  convicted  thereof  shall  be  liable,  at  the 
discretion  of  the  court,  to  be  kept  in  penal  servitude  for  life,  or  for 
*KArl  *^"y  ^^^'"^  ^^^  ^^^^  *^^^"  ^^^  years,  or  to  be  imprisoned  for  any 
-•  term  not  exceeding  two  years,  with  or  without  hard  labor,  and 
with  or  without  solitary  confinement." 

By.  s.  5,  "  If  any  person,  without  lawful  authority  or  excuse,  the 
proof  whereof  shall  lie  on  the  party  accused,  engraves  or  makes  on 
any  plate,  wood,  stone  or  other  material  any  stock  certificate  or  coupon 
purporting  to  be  such  a  stock  certificate  or  coupon  as  aforesaid,  or  to 
be  such  a  stock  certificate  or  coupon  as  aforesaid  in  blank,  or  to  be  a 
part  of  such  a  stock  certificate  or  coupon  as  aforesaid,  or  uses  any  such 
plate,  wood,  stone  or  other  materials  for  the  making  or  printing  of 
any  such  stock  certificate  or  coupon,  or  blank  stock  certificate  or  coupon 
as  aforesaid,  or  any  part  thereof  respectively,  or  knowingly  has  in  his 
custody  or  possession  any  such  plate,  wood,  stone  or  other  material,  or 
knowingly  offers,  utters,  disposes  of,  or  puts  off,  or  has  in  his  custody 
or  possession  any  paper  on  which  any  such  blank  stock  certificate  or 
coupon  as  aforesaid,  or  part  of  any  such  stock  certificate  or  coupon 
as  aforesaid,  is  made  or  printed,  he  shall  be  guilty  of  felony,  and  being 
convicted  thereof  shall  be  liable,  at  the  discretion  of  the  court,  to  be 
kept  in  penal  servitude  for  any  term  not  exceeding  fourteen  years,  and 
not  less  than  five  years,  or  to  be  imprisoned  for  any  term  not  exceeding 
two  years,  with  or  without  hard  labor,  and  with  or  without  solitary 
confinement." 

By  s.  6,  "  If  any  person  forges,  or  alters,  or  offers,  utters,  disposes 
of,  or  puts  off,  knowing  the  same  to  be  forged  or  altered,  any  certifi- 
cate or  duplicate  certificate  required  by  Part  6  of  the  National  Debt , 
Act,  1870,  or  by  any  former  like  enactment,  with  intent  in  any  of  the 
cases  aforesaid  to  defraud,  he  shall  be  guilty  of  felony,  and  being  con- 
victed thereof  shall  be  liable,  at  the  discretion  of  the  court,  to  be  kept 
in  penal  servitude  for  life,  or  for  any  term  not  less  than  five  years,  or 
to  be  imprisoned  for  any  term  not  exceeding  two  years,  with  or  with- 
out hard  labor,  and  with  or  without  solitary  confinement." 

Personating  the  owner  of  stock,  and  transferring  or  receiving 
dividends.  By  the  24  &  25  Vict.  c.  98,  s.  3,  "  whosoever  shall 
falsely  and  deceitfully  personate  any  owner  of  any  share  or  inter- 
est of  or  in  any  stock,  annuity,  or  other  public  fund  which  now  is  or 
hereafter  may  be  transferrable  at  the  bank  of  England,  or  at  the  bank 
of  Ireland,  or  any  owner  of  any  share  or  interest  of  or  in  the  capital 
stock  of  any  body  corporate,  company,  or  society  which  now  is  or 
hereafter  may  be  established  by  charter,  or  by,  under,  or  by  virtue  of 
any  act  of  parliament,  or  any  owner  of  any  dividend  or  money  paya- 
ble in  respect  of  any  such  share  or  interest  as  aforesaid,  and  shall 
thereby  transfer  or  endeavor  to  transfer  any  share  or  interest  belong- 


FORGERY.  701 

ing  to  any  such  owner,  or  thereby  receive  or  endeavor  to  receive  any 
money  due  to  any  such  owner,  as  if  such  offender  were  the  true  and 
lawful  owner,  shall  be  guilty  of  felony,  and  being  convicted  thereof 
shall  be  liable,  at  the  discretion  of  the  court,  to  be  kept  in  penal  servi- 
tude for  life,  or  for  any  term  not  less  than  three  [now  five]  years,  or 
to  be  imprisoned  for  any  term  not  exceeding  two  years,  with  or  with- 
out hard  labor,  and  with  or  without  solitary  confinement." 

Forging  attestation  to  power  of  attorney  for  transfer  of  stock. 

By  s.  4,  "  whosoever  shall  forge  any  name,  handwriting,  or  signature 
*purporting  to  be  the  name,  handwriting,  or  signature  of  a  wit-  r^rj.? 
nsss  attesting  the  execution  of  any  power  of  attorney  or  other  L 
authority  to  transfer  any  share  or  interest  of  or  in  any  such  stock, 
annuity,  public  fund,  or  capital  stock  as  is  in  either  of  the  last  two  pre- 
ceding sections  mentioned,  or  to  receive  any  dividend  or  money  pay- 
able in  respect  of  any  such  share  or  interest,  or  shall  offer,  utter,  dis- 
pose of,  or  put  off  any  such  power  of  attorney  or  other  authority, 
with  any  such  forged  name,  handwriting,  or  signature  thereon,  know- 
ing the  same  to  be  forged,  shall  be  guilty  of  felony,  and  being  con- 
victed thereof  shall  be  liable,  at  the  discretion  of  the  court,  to  be  kept 
in  penal  servitude  for  any  term  not  exceeding  seven  years  and  not  less 
than  three  [now  five]  years,  or  to  be  imprisoned  for  any  term  not  ex- 
ceeding two  years,  with  or  without  hard  labor,  and  with  or  without 
solitary  confinement."  Extended  to  Scotland  by  the  33  &  34  Vict.  c. 
58,  s.  7. 

Making  false  entries  in  the  books  of  the  public  funds.  By  s.  5, 
**  whosoever  shall  wilfully  make  any  false  entry  in,  or  wilfully  alter 
any  word  or  figure  in,  any  of  the  books  of  account  kept  by  the 
governor  and  company  of  the  bank  of  England  or  the  governor  and 
company  of  the  bank  of  Ireland,  in  which  books  the  accounts  of  the 
owners  of  any  stock,  annuities,  or  other  public  funds  which  now  are 
or  hereafter  may  be  transferable  at  the  bank  of  England  or  at  the  bank 
of  Ireland  shall  be  entered  and  kept,  or  shall  in  any  manner  wilfully 
falsify  any  of  the  accounts  of  any  such  owners  in  any  of  the  said 
books,  with  intent  in  any  of  the  cases  aforesaid  to  defraud,  or  shall 
wilfully  make  any  transfer  of  any  share  or  interest  of  or  in  any  stock, 
annuity,  or  other  public  fund  which  now  is  or  hereafter  may  be  trans- 
ferable at  the  bank  of  England  or  at  the  bank  of  Ireland,  in  the  name 
of  any  person  not  being  the  true  and  lawful  owner  of  such  share  or 
interest,  with  intent  to  defraud,  shall  be  guilty  of  felony,  and  being 
convicted  thereof  shall  be  liable,  at  the  discretion  of  the  court,  to  be 
kept  in  penal  servitude  for  life,  or  for  any  term  not  less  than  three 
[now  five]  years,  or  to  be  imprisoned  for  any  term  not  exceeding  two 
years,  with  or  without  hard  labor,  and  with  or  without  solitary  con- 
finement." 

Clerks  of  the  bank  making  out  false  dividend  warrants.  By  s. 
6,  "  whosoever,  being  a  clerk,  officer,  or  servant  of,  or  other  person  em- 


702  FORGERY. 

ployed  or  intrusted  by  the  governor  and  company  of  the  bank  of  Eng- 
land, or  the  governor  and  company  of  the  bank  of  Ireland,  shall  know- 
ingly make  out  or  deliver  any  dividend  warrant  or  warrant  for  payment 
of  any  annuity,  interest,  or  money  payable  at  the  bank  of  England  or 
Ireland  for  a  greater  or  less  amount  than  the  person  on  whose  behalf 
sucli  warrant  shall  be  made  out  is  entitled  to,  with  intent  to  defraud, 
shall  be  guilty  of  felony,  and  being  convicted  thereof  shall  be  liable,  at 
the  discretion  of  the  court,  to  be  kept  in  penal  servitude  for  any  term  not 
exceeding  seven  years  and  not  less  than  three  [now  five]  years,  or  to 
be  imprisoned  for  any  term  not  exceeding  two  years,  with  or  without 
hard  labor,  and  with  or  without  solitary  confinement." 

Forging  East  India  securities.  By  s.  7,  "whosoever  shall  forge 
or  alter,  or  shall  oifer,  utter,  dispose  of,  or  put  off,  knowing  the  same 
to  be  forged  or  altered,  any  bond  commonly  called  an  East  India  bond, 
*fiJ.8l  *^^  ^"^  bond,  debenture,  or  security  issued  or  made  under  the 
-I  authority  of  an  act  passed  or  to  be  passed  relating  to  the  East 
Indies,  or  any  indorsement  on  or  assignment  of  any  such  bond,  deben- 
ture, or  security,  with  intent  to  defraud,  shall  be  guilty  of  felony,  and 
being  convicted  thereof  shall  be  liable,  at  the  discretion  of  the  court, 
to  be  kept  in  penal  servitude  for  life,  or  for  any  term  not  less  than  three 
[now  five]  years,  or  to  be  imprisoned  for  any  term  not  exceeding 
two  years,  with  or  without  hard  labor,  and  with  or  without  soli- 
tary confinement." 

Forging  East  India  loan  securities.  By  the  East  India  Loan 
Acts,  1873,  1874,  36  &  37  Vict.  c.  32,  s.  13  ;  37  &  38  Vict.  c.  3,  s.  13, 
the  provisions  of  the  above  (sect.  7)  are  extended  to  the  debentures  and 
bonds  issued  under  those  acts. 

Forging  exchequer  bills,  bonds,  debentures,  etc.  By  s.  8,  "  who- 
soever shall  forge  or  alter,  or  shall  offer,  utter,  dispose  of,  or  put  off, 
knowing  the  same  to  be  forged  or  altered,  any  exchequer  bill,  or  ex- 
chequer bond,  or  exchequer  debenture,  or  any  indorsement  on  or  as- 
signment of  any  exchequer  bill,  or  exchequer  bond,  or  exchequer 
debenture,  or  any  receipt  or  certificate  for  interest  accruing  thereon, 
with  intent  to  defraud,  shall  be  guilty  of  felony,  and  being  convicted 
thereof,  shall  be  liable,  at  the  discretion  of  the  court,  to  be  kept  in 
penal  servitude  for  life,  or  for  any  term  not  less  than  three  [now  five] 
years,  or  to  be  imprisoned  for  any  term  not  exceeding  two  years,  with  or 
without  hard  labor,  and  with  or  without  solitary  confinement." 

Making  plates,  etc.,  in  imitation  of  those  used  for  exchequer 
bills,  etc.  By  s.  9,  "whosoever,  without  lawful  authority  or  excuse 
(the  proof  whereof  shall  lie  on  the  party  accused),  shall  make,  or  cause 
or  procure  to  be  made,  or  shall  aid  or  assist  in  making,  or  shall  know- 
ingly have  in  his  custody  or  possession,  any  frame,  mould,  or  instru- 
ment having  therein  any  words,  letters,  figures,  marks,  lines,  or  de- 
vices peculiar  to  and  appearing  in  the  substance  of  any  paper  provided 


FORGERY.  703 

or  to  be  provided  or  used  for  exchequer  bills,  or  exchequer  bonds,  or 
exchequer  debentures,  or  any  machinery  for  working  any  threads  into 
the  substance  of  any  paper,  or  any  such  thread,  and  intended  to  imi- 
tate such  words,  letters,  figures,  marks,  lines,  threads,  or  devices,  or 
any  plate  peculiarly  employed  for  printing  such  exchequer  bills,  bonds, 
or  debentures,  or  any  die  or  seal  peculiarly  used  for  preparing  any  such 
plate,  or  for  sealing  such  exchequer  bills,  bonds,  or  debentures,  "or  any 
plate,  die,  or  seal  intended  to  imitate  any  such  plate,  die,  or  seal  as 
aforesaid,  shall  be  guilty  of  felony,  and  being  convicted  thereof  shall 
be  liable,  at  the  discretion  of  the  court,  to  be  kept  in  penal  servitude 
for  any  term  not  exceeding  seven  years,  and  not  less  than  three 
[now  five]  years,  or  to  be  imprisoned  for  any  term  not  exceeding  two 
years,  with  or  without  hard  labor,  and  with  or  without  solitary  con- 
finement." 

Making  paper  in  imitation  of  that  used  for  exchequer  bills.    By 

s.  10,  "whosoever,  without  lawful  authority  or  excuse  (the  proof 
whereof  shall  lie  on  the  party  accused),  shall  make  or  cause  or  pro- 
cure to  be  made,  or  aid  or  assist  in  making,  any  paper  in  the  sub- 
stance of  which  shall  appear  any  words,  letters,  figures,  marks,  lines, 
threads,  or  other  devices  peculiar  to  and  appearing  in  the  substance 
*of  any  paper  provided  or  to  be  provided  or  used  for  such  ex-  r*r/iQ 
chequer  bills,  bonds,  or  debentures,  or  any  part  of  such  words,  L  ^  ^ 
letters,  figures,  marks,  lines,  threads,  or  other  devices,  and  intended 
to  imitate  the  same,  or  shall  knowingly  have  in  his  custody  or  posses- 
sion any  paper  whatsoever,  in  the  substance  whereof  shall  appear  any 
such  words,  letters,  figures,  marks,  lines,  threads,  or  devices  as  afore- 
said, or  any  parts  of  such  words,  letters,  figures,  marks,  lines,  threads, 
or  other  devices,  and  intended  to  imitate  the  same,  or  shall  cause  or 
assist  in  causing  any  such  words,  letters,  figures,  marks,  lines,  threads, 
or  devices  as  aforesaid,  or  any  part  of  such  words,  letters,  figures, 
marks,  lines,  threads,  or  other  devices,  and  intended  to  imitate  the  same, 
to  appear  in  the  substance  of  any  paper  whatever,  or  shall  take  or 
assist  in  taking  any  impression  of  any  such  plate,  die,  or  seal,  as  in  the 
last  preceding  section  mentioned,  shall  be  guilty  of  felony,  and  being 
convicted  thereof  shall  be  liable,  at  the  discretion  of  the  court,  to  be 
kept  in  penal  servitude  for  any  term  not  exceeding  seven  years,  and 
not  less  than  three  [now  five]  years,  or  to  be  imprisoned  for  any  term 
not  exceeding  two  years,  with  or  without  hard  labor,  and  with  or  with- 
out solitary  confinement. 

Having  in  possession  paper,  plates,  or  dies  to  be  used  for  ex- 
chequer bills,  etc.  By  s.  11,  "whosoever  without  lawful  authority 
or  excuse  (the  proof  whereof  shall  lie  on  the  party  accused),  shall  pur- 
chase or  receive  or  knowingly  have  in  his  custody  or  possession  any 
paper  manufactured  and  provided  by  or  under  the  directions  of  the 
commissioners  of  inland  revenue  or  commissioners  of  her  Majesty's 
treasury,  for  the  purpose  of  being  used  as  exchequer  bills,  or  exchequer 
bonds,  or  exchequer  debentures,  before  such  paper  shall  have  been  duly 


704  *  FORGERY. 

stamped,  signed,  and  issued  for  the  public  use,  or  any  such  plate,  die, 
or  seal,  as  in  the  last  two  preceding  sections  mentioned,  shall  be  guilty 
of  a  misdemeanor,  and  being  convicted  thereof  shall  be  liable,  at  the 
discretion  of  the  court,  to  be  imprisoned  for  any  term  not  exceeding 
three  years,  with  or  without  hard  labor." 

Forging  bank  notes  and  bills.  By  s.  12,  "whosoever  shall  forge 
or  alter,  or  shall  offer,  utter,  dispose  of,  or  put  off,  knowing  the  same 
to  be  forged  or  altered,  any  note  or  bill  of  exchange  of  the  governor 
and  company  of  the  bank  of  England,  or  of  the  governor  and  com- 
pany of  the  bank  of  Ireland,  or  of  any  other  body  corporate,  company, 
or  persons  carrying  on  the  business  of  bankers,  commonly  called  a 
bank  note,  a  bank  bill  of  exchange,  or  a  bank  post  bill,  or  any  indorse- 
ment on  or  assignment  of  any  bank  note,  bank  bill  of  exchange,  or 
bank  post  bill,  with  intent  to  defraud,  shall  be  guilty  of  felony,  and 
being  convicted  thereof  shall  be  liable,  at  the  discretion  of  the  court, 
to  be  kept  in  penal  servitude  for  life,  or  for  any  term  not  less  than 
three  [now  five]  years,  or  to  be  imprisoned  for  any  term  not  exceeding 
two  years,  with  or  without  hard  labor,  and  with  or  without  solitary 
confinement." 

Purchasing  or  receiving  or  having  forged  bank  notes  and  bills. 

By  s.  13,  "whosoever,  without  lawful  authority  or  excuse  (the  proof 
whereof  shall  lie  on  the  party  accused),  shall  purchase  or  receive  from 
any  other  person,  or  have  in  his  custody  or  possession,  any  forged  bank 
note,  bank  bill  of  exchange,  or  bank  post  bill,  or  blank  bank  note, 
blank  bill  of  exchange,  or  blank  post  bill,  loiowing  the  same  to 
j^- -„-,  *be  forged,  shall  be  guilty  of  felony,  and  being  convicted  there- 
-1  of,  shall  be  liable,  at  the  discretion  of  the  court,  to  be  kept  in 
penal  servitude  for  any  term  not  exceeding  fourteen  years  and  not  less 
than  three  [now  five]  years,  or  to  be  imprisoned  for  any  term  not  ex- 
ceeding two  years,  with  or  without  hard  labor." 

Making  or  having  mould  or  paper  for  forging  notes  of  banks  of 
England  and  Ireland.  By  s.  1 4,  "  whosoever,  without  lawful  author- 
ity or  excuse  (the  proof  whereof  shall  lie  on  the  party  accused),  shall 
make  or  use,  or  knowingly  have  in  his  custody  or  possession,  any  frame, 
mould,  or  instrument  for  the  making  of  paper  with  the  words  '  bank 
of  England '  or  '  bank  of  Ireland,'  or  any  part  of  such  words  intended 
to  resemble  and  pass  for  the  same,  visible  in  the  substance  of  the  paper, 
or  for  the  making  of  paper  Avith  curved  or  waving  bar  lines,  or  Avith 
the  laying  wire  lines  thereof  in  a  waving  or  curved  shape,  or  with  any 
number,  sum,  or  amount  expressed  in  a  word  or  words  in  Roman  let- 
ters, visible  in  the  substance  of  the  paper,  or  with  any  device  or  dis- 
tinction peculiar  to  and  appearing  in  the  substance  of  the  paper  used 
by  the  governor  and  company  of  the  banks  of  England  and  Ireland 
respectively  for  any  notes,  bills  of  exchange,  or  bank  post  bills  of  such 
banks  respectively,  or  shall  make,  use,  sell,  expose  to  sale,  utter,  ov 
dispose  of,  or  knowingly  have  in  his  custody  or  possession,  any  paper 


FORGERY.  705 

whatsoever  with  the  words  '  bank  of  England '  or  '  bank  of  Ireland,' 
or  any  part  of  such  words  intended  to  resemble  and  pass  for  the  same, 
visible  in  the  substance  of  the  paper,  or  any  paper  with  curved  or 
Avaving  bar  lines,  or  with  the  laying  wire  lines  thereof  in  a  waving  or 
curved  shape,  or  with  any  number,  sum  or  amount  expressed  in  a  word 
or  words  in  Roman  letters,  appearing  visible  in  the  substance  of  the 
paper,  or  with  any  device  or  distinction  peculiar  to  and  appearing  in 
the  substance  of  the  paper  used  by  the  governor  and  company  of  the 
banks  of  England  and  Ireland  respectively  for  any  notes,  bills  of  ex- 
change, or  bank  post  bills  of  such  banks  respectively,  or  shall  by  any 
art  or  contrivance  cause  the  words  '  bank  of  England '  or  '  bank  of 
Ireland,'  or  any  part  of  such  words  intended  to  resemble  and  pass  for 
the  same,  or  any  device  or  distinction  peculiar  to  and  appearing  in  the 
substance  of  the  paper  used  by  the  governor  and  company  of  the  banks 
of  England  and  Ireland  respectively  for  any  notes,  bills  of  exchange,  or 
bank  post  bills  of  such  banks  respectively,  to  appear  visible  in  the 
substance  of  any  paper,  or  shall  cause  the  numerical  sum  or  amount  of 
any  bank  note,  bank  bill  of  change,  or  bank  post  bill,  blank  bank 
note,  blank  bank  bill  of  exchange,  or  blank  bank  post  bill,  in  a  word 
or  words  in  Roman  letters,  to  appear  visible  in  the  substance  of  the 
paper  whereon  the  same  shall  be  written  or  printed,  shall  be  guilty  of 
felony,  and  being  convicted  thereof  shall  be  liable,  at  the  discretion  of 
the  court,  to  be  kept  in  penal  servitude  for  any  term  not  exceeding 
fourteen  years  and  not  less  than  three  [now  five]  years,  or  to  be  im- 
prisoned for  any  term  not  exceeding  two  years,  with  or  without  hard 
labor." 

But  it  is  provided,  by  s.  15,  that  "nothing  in  the  last  preceding 
section  contained  shall  prevent  any  person  from  issuing  any  bill  of  ex- 
change or  promissory  note  having  the  amount  thereof  expressed  in 
guineas,  or  in  a  numerical  figure  or  figures  denoting  the  amount 
thereof  in  pounds  sterling  appearing  visible  in  the  substance  of 
the  paper  upon  which  the  same  shall  be  written  or  printed,  nor 
*shall  prevent  any  person  from  making,  using,  or  selling  any  t^ickki 
paper  having  waving  or  curved  lines,  or  any  other  devices  in  L  ' 
the  nature  of  water-marks  visible  in  the  substance  of  the  paper,  not 
being  bar  lines  or  laying  wire  lines,  provided  the  same  are  not  so  con- 
trived as  to  form  the  groundwork  or  texture  of  the  paper,  or  to  resem- 
ble the  waving  or  curved  laying  wire  lines  or  bar  lines,  or  the  water- 
marks of  the  paper  used  by  the  governor  and  company  of  the  banks 
of  England  and  Ireland  respectively." 

Engraving  or  having  any  plate  or  paper  for  making  forged  bank 
notes  or  bills.  By  s.  16,  "  whosoever,  without  lawful  authority  or 
excuse  (the  proof  whereof  shall  lie  on  the  party  accused),  shall  en- 
grave or  in  anywise  make  upon  any  plate  Avhatsoever,  or  upon  any 
wood,  stone,  or  other  material,  any  promissory  note,  bill  of  exchange, 
or  bank  post  bill,  or  part  of  a  promissory  note,  bill  of  exchange, 
or  bank  post  bill,  purporting  to  be  a  bank  note,  bank  bill  of  ex- 
change, or  bank  post  bill  of  the  governor  and  company  of  the  bank 
45 


706  FORGERY. 

of  England,  or  of  the  governor  and  company  of  the  bank  of  Ireland, 
or  of  any  other  body  corporate,  company,  or  person  carrying  on  the 
business  of  bankers,  or  to  be  a  blank  bank  note,  blank  promissory 
note,  blank  bank  bill  of  exchange,  or  blank  bank  post  bill  of  the 
governor  and  company  of  the  bank  of  England,  or  of  the  governor 
and  company  of  the  bank  of  Ireland,  or  of  any  such  other  body 
corporate,  company,  or  person  as  aforesaid,  or  to  be  a  part  of  a  bank 
note,  promissory  note,  bank  bill  of  exchange,  or  bank  post  bill  of  the 
governor  and  company  of  the  bank  of  England,  or  of  the  governor 
and  company  of  the  bank  of  Ireland,  or  of  any  such  other  body 
corporate,  company,  or  person  as  aforesaid,  or  any  name,  word,  or 
character  resembling  or  apparently  intended  to  resemble  any  sub- 
scription to  any  bill  of  exchange  or  promissory  note  issued  by  the 
governor  and  company  of  the  bank  of  England,  or  the  governor  and 
company  of  the  bank  of  Ireland,  or  by  any  such  other  body  corporate, 
company  or  person  as  aforesaid,  or  shall  use  any  such  plate,  wood, 
stone,  or  other  material,  or  any  other  instrument  or  device,  for  the 
making  or  printing  any  bank  note,  bank  bill  of  exchange,  or  bank 
post  bill,  or  blank  bank  note,  blank  bank  bill  of  exchange,  or  blank 
bank  post  bill,  or  part  of  a  bank  note,  bank  bill  of  exchange,  or  bank 
post  bill,  or  knowingly  have  in  his  custody  or  possession  any  such 
plate,  wood,  stone,  or  other  material,  or  any  such  instrument  or  de- 
vice ;  or  shall  knowingly  oifer,  utter,  dispose  of,  or  put  oif,  or  have  in 
his  custody  or  possession  any  paper  upon  which  any  blank  bank  note, 
blank  bank  bill  of  exchange,  or  blank  bank  post  bill  of  tlie  governor 
and  company  of  the  bank  of  England,  or  of  the  governor  and  com- 
pany of  the  bank  of  Ireland,  or  of  any  such  other  body  corporate, 
company,  or  person  as  aforesaid,  or  part  of  a  bank  note,  bank  bill  of 
exchange,  or  bank  post  bill,  or  any  name,  word,  or  character  resem- 
bling or  apparently  intended  to  resemble  any  such  subscription,  shall 
be  made  or  printed,  shall  be  guilty  of  felony,  and  being  convicted 
thereof  shall  be  liable,  at  the  discretion  of  the  court,  to  be  kept  in 
penal  servitude  for  any  term  not  exceeding  fourteen  years,  and  not 
less  than  three  [now  five]  years,  or  to  be  imprisoned  for  any  term  not 
exceeding  two  years  with  or  without  hard  labor,  and  with  or  with- 
out solitary  confinement." 

Engraving  any  part  of  a  bank  note  or  bill,  or  using  or  having  any 
such  plate,  uttering  or  having  any  impression  thereof.  By  section 
^t-f-rt-i  17,  *"  whosoever,  without  lawful  authority  or  excuse  (the  proof 
-■  whereof  shall  lie  on  the  party  accused),  shall  engrave  or  in  any- 
wise make  upon  any  plate  whatsoever,  or  upon  any  wood,  stone,  or 
other  material,  any  word,  number,  figure,  device,  character,  or  orna- 
ment the  impression  taken  from  which  shall  resemble  or  apparently  be 
intended  to  resemble  any  part  of  a  bank  note,  bank  bill  of  exchange, 
or  bank  post  bill  of  the  governor  and  company  of  the  bank  of  Eng- 
land, or  of  the  governor  and  company  of  the  bank  of  Ireland,  or  of 
any  other  body  corporate,  company,  or  person  carrj'ing  on  the 
business  of  bankers,  or  shall  use  or  knowingly  have  in  his  custody  or 


FORGERY.  707 

possession  any  such  plate,  wood,  stone,  or  other  material,  or  any  other 
instrument  or  device  for  the  impressing  or  making  upon  any  paper  or 
other  material  any  word,  number,  figure,  character,  or  ornament 
which  shall  resemble  or  apparently  be  intended  to  resemble  any  part 
of  a  bank  note,  bank  bill  of  exchange,  or  bank  post  bill  of  the  governor 
and  company  of  the  bank  of  England,  or  of  the  governor  and  company 
of  the  bank  of  Ireland,  or  of  any  such  other  body  corporate,  com- 
pany, or  person  as  aforesaid,  or  shall  knowingly  offer,  utter,  dispose 
of,  or  put  off,  or  have  in  his  custody  or  possession,  any  paper  or  other 
material  upon  which  there  shall  be  an  impression  of  any  such  matter 
as  aforesaid,  shall  be  guilty  of  felony,  and  being  convicted  thereof 
shall  be  liable,  at  the  discretion  of  the  court,  to  be  kept  in  penal  ser- 
vitude for  any  term  not  exceeding  fourteen  years  and  not  less  than 
three  [now  five]  years,  or  to  be  imprisoned  for  any  term  not  ex- 
ceeding two  years,  with  or  without  hard  labor,  and  with  or  without 
solitary  confinement." 

Making  or  having  mould  for  making  paper  with  the  name  of  any 
banker  thereon,  or  making  or  having  such  paper.  By  section  18, 
*'  whosoever,  without  lawfid  authority  or  excuse  (the  proof  whereof 
shall  lie  on  the  party  accused),  shall  make  or  use  any  frame,  mould, 
or  instrument  for  the  manufacture  of  paper,  with  the  name  or  firm  of 
any  body  corporate,  company,  or  person  carrying  on  the  business  of 
bankers  (other  than  and  except  the  banks  of  England  and  Ireland 
respectively),  appearing  visible  in  the  substance  of  the  paper,  or 
knowingly  have  in  his  custody  or  possession  any  such  frame,  mould, 
or  instrument,  or  make,  use,  sell,  expose  to  sale,  utter,  or  dispose  of, 
or  knowingly  have  in  his  custody  or  possession  any  paper  in  the  sub- 
stance of  which  the  name  or  firm  of  any  such  body  corporate,  com- 
pany or  person  shall  appear  visible,  or  by  any  art  or  contrivance 
cause  the  name  or  firm  of  any  such  body  corporate,  company,  or  person 
to  appear  visible  in  the  substance  of  the  paper  upon  which  the  same 
shall  be  written  or  printed,  shall  be  guilty  of  felony,  and  being  con- 
victed thereof  shall  be  liable,  at  the  discretion  of  the  court,  to  be  kept 
in  penal  servitude  for  any  term  not  exceeding  foui-teen  years,  and  not 
less  than  three  [now  five]  years,  or  to  be  imprisoned  for  any  term  not 
exceeding  two  years,  with  or  without  hard  labor,  and  with  or  with- 
out solitary  confinement." 

Engraving  plates  for  foreign  bills  or  notes,  or  using  or  having  such 
plates,  or  uttering  or  having  any  impression  thereof.  By  s.  19,  "  who- 
soever, without  lawful  authority  or  excuse  (the  proof  whereof  shall 
lie  on  the  party  accused),  shall  engrave  or  in  anywise  make  upon  any 
plate  whatsoever,  or  upon  any  wood,  stone,  or  other  material,  any 
*bill  of  exchange,  promissory  note,  undertaking,  or  order  for  r*Kco 
payment  of  money,  or  any  part  of  any  bill  of  exchange,  prom-  •- 
issory  note,  undertaking,  or  order  for  payment  of  money,  in  whatever 
language  the  same  may  be  expressed,  and  whether  the  same  shall  or 
shall  not  be  or  be  intended  to  be  under  seal,  purporting  to  be  the  bill,  note, 


708  FOEGERY. 

undertaking,  or  order,  or  part  of  the  bill,  note,  undertaking,  or  order  of 
any  foreign  prince  or  state,  or  of  any  minister  or  officer  in  the  service 
of  any  foreign  prince  or  state,  or  of  any  body  corporate,  or  body  of  the 
like  nature,  constituted  or  recognized  by  any  foreign  prince  or  state, 
or  of  any  person  or  company  of  persons  resident  in  any  country  not 
under  the  dominion  of  her  Majesty,  or  shall  use,  or  knowingly  have 
in  his  custody  or  possession  any  plate,  stone,  wood,  or  other  material 
upon  which  any  such  foreign  bill,  note,  undertaking,  or  order,  or  any 
part  thereof,  shall  be  engraved  or  made,  or  shall  knowingly  offer, 
utter,  dispose  of,  or  put  off,  or  have  in  his  custody  or  possession  any 
paper  upon  which  any  part  of  such  foreign  bill,  note,  undertaking,  or 
order  shall  be  made  or  printed,  shall  be  guilty  of  felony,  and  being 
convicted  thereof  shall  be  liable,  at  the  discretion  of  the  court,  to  be 
kept  in  penal  servitude  for  any  term  not  exceeding  fourteen  years  and 
not  less  than  three  [now  five]  years,  or  to  be  imprisoned  for  any  term 
not  exceeding  two  years,  with  or  without  hard  labor,  and  with  or 
without  solitary  confinement." 

Forging  deeds,  bonds,  etc.  By  s.  20,  "  whosoever,  with  intent  to 
defraud,  shall  forge  or  alter,  or  shall  offer,  utter,  dispose  of,  or  put  off, 
knowing  the  same  to  be  forged  or  altered,  any  deed  or  any  bond  or 
writing  obligatory,  or  any  assignment  at  law  or  in  equity  of  any  such 
bond  or  writing  obligatory,  or  shall  forge  any  name,  handwriting,  or 
signature  purporting  to  be  the  name,  handwriting,  or  signature  of  a 
witness  attesting  the  execution  of  any  deed,  bond  or  writing  obliga- 
tory, or  shall  offer,  utter,  dispose  of,  or  put  off  any  deed,  bond,  or 
writing  obligatory,  having  thereon  any  such  forged  name,  handwrit- 
ing, or  signature,  knowing  the  same  to  be  forged,  shall  be  guilty  of 
felony,  and  being  convicted  thereof  shall  be  liable,  at  the  discretion  of 
the  court,  to  be  kept  in  penal  servitude  for  life  or  for  any  term  not 
less  than  three  [now  five]  years,  or  to  be  imprisoned  for  any  term  not 
exceeding  two  years,  with  or  without  hard  labor,  and  with  or  without 
solitary  confinement." 

Forging  wills.  By  s.  21,  "  whosoever,  with  intent  to  defraud,  shall 
forge  or  alter,  or  shall  offer,  utter,  dispose  of,  or  put  off,  knowing  the 
same  to  be  forged  or  altered,  any  will,  testament,  codicil,  or  testa- 
mentary instrument,  shall  be  guilty  of  felony,  and  being  convicted 
thereof  shall  be  liable,  at  the  discretion  of  the  court,  to  be  kept  in 
penal  servitude  for  life,  or  for  any  term  not  less  than  three  [now  five] 
years,  or  to  be  imprisoned  for  any  term  not  exceeding  two  years, 
v/ith  or  without  hard  labor,  and  with  or  without  solitary  confine- 
un.'nt." 

Forging, bills  of  exchange  or  promissory  notes.  By  s.  22,  "  Avhoso- 
ever  shall  forge  or  alter,  or  shall  offer,  utter,  dispose  of,  or  put  off, 
knowing  the  same  to  be  forged  or  altered,  any  bill  of  exchange,  or 
any  aoceptancc,  indorsement,  or  assignment  of  any  bill  of  ex(,'hange, 
or  any  prondssory  note  for  the  payment  of  money,  or  any  indorsement, 


FORGERY.  703 

or  assignment  of  any  sncli  promissory  note,  with  intent  to  defraud, 
*shall  be  guilty  of  felon}^,  and  being  convicted  thereof  shall  be  r^j^-rj^ 
liable,  at  the  discretion  of  the  court,  to  be  kept  in  penal  servi-  ^  '^'^ 
tude  for  life,  or  for  any  term  not  less  than  three  [now  five]  years,  of 
to  be  imprisoned  for  any  term  not  exceeding  two  years,  with  or  with-, 
out  hard  labor,  and  with  or  without  solitary  confinement." 

Forging  orders,  receipts,  etc.,  for  money  or  goods.     By  s.  23, 

"  whosoever  shall  forge  or  alter,  or  shall  oifer,  utter,  dispose  of,  or  put 
off,  knowing  the  same  to  be  forged  or  altered,  any  undertaking,  war- 
rant, order,  authority,  or  request,  for  the  payment  of  money,  or  for 
the  delivery  or  transfer  of  any  goods  or  chattels,  or  of  any  note, 
bill,  or  other  security  for  the  payment  of  money,  or  for  procuring  or 
giving  credit,  or  any  indorsement  on  or  assignment  of  any  such  un- 
dertaking, warrant,  order,  authority,  or  request,  or  any  accountable 
receipt,  acquittance,  or  receipt  for  money  or  goods,  or  for  any 
note,  bill,  or  other  security  for  the  payment  of  money,  or  any  indorse- 
ment on  or  assignment  of  any  such  accountable  receipt,  with  intent, 
in  any  of  the  cases  aforesaid,  to  defraud,  shall  be  guilty  of  felony, 
and  being  convicted  thereof  shall  be  liable,  at  the  discretion  of  the 
court,  to  be  kept  in  penal  servitude  for  life  or  for  any  term  not  less 
than  three  [now  five]  years,  or  to  be  imprisoned  for  any  term  not 
exceeding  two  years,  with  or  without  hard  labor,  and  with  or  without 
solitary  confinement." 

Drawing,  making,  accepting,  indorsing,  or  signing  bills,  notes, 
receipts,  etc.,  without  authority.  By  s.  24,  "  whosoever,  with  intent 
to  defraud,  shall  draw,  make,  sign,  accept,  or  indorse  any  bill  of  ex- 
change, or  promissory  note,  or  any  undertaking,  warrant,  order,  au- 
thority, or  request  for  the  payment  of  money,  or  for  the  delivery  or 
transfer  of  goods  or  chattels,  or  of  any  bill,  note,  or  other  security  for 
money  by  procuration  or  otherwise,  for,  in  the  name,  or  on  the  account 
of  any  other  person,  without  lawful  authority  or  excuse,  or  shall  offer, 
utter,  dispose  of,  or  put  off  any  such  bill,  note,  undertaking,  warrant, 
order,  authority,  or  request  so  drawn,  made,  signed,  accepted,  or  in- 
dorsed by  procuration  or  otherwise,  without  lawful  authority  or  excuse 
as  aforesaid,  knowing  the  same  to  have  been  so  drawn,  made,  signe^l, 
accepted,  or  indorsed  as  aforesaid,  shall  be  guilty  of  felony,  and  being 
convicted  thereof  shall  be  liable,  at  the  discretion  of  the  court,  to  be 
kept  in  penal  servitude  for  any  term  not  exceeding  fourteen  years 
and  not  less  than  three  [now  five]  years,  or  to  be  imprisoned  for  any 
term  not  exceeding  two  years,  with  or  without  hard  labor,  and  \vith 
or  without  solitary  confinement." 

Obliterating  crossings  on  cheques.  By  s.  25, "  whenever  any  cheque 
or  draft  on  any  banker  shall  be  (crossed  with  the  name  of  a  banker, 
or  with  two  transverse  lines  with  the  words  'and  company,'  or  any 
abbreviation  thereof,  whosoever  shall  obliterate,  add  to,  or  alter  any 
such  crossing,  or  shall  offer,  utter,  dispose  of,  or  put  off  any  cheque 


710  FORGERY. 

or  draft  wliercon  any  such  obliteration,  addition,  or  alteration  has 
been  made,  knowing  the  same  to  have  been  made  with  intent,  in  any 
of  the  cases  aforesaid,  to  defraud,  shall  be  guilty  of  felony,  and 
being  convicted  thereof  shall  be  liable,  at  the  discretion  of  the  court, 
to  be  kept  in  penal  servitude  for  life  or  for  any  terra  not  less  than 
three  [now  five]  years,  or  to  be  imprisoned  for  any  term  not  exceed- 
ing two  years,  with  or  without  hard  labor,  and  with  or  without 
^(.ppl  *solitary  confinement."  Extended  to  stocks  under  the  Local 
'  '^'^■^   Authorities  Loan  Act,  38  &  39  Vict.  c.  83,  by  section  32. 

Forging  debentures.  By  s.  26,  "whosoever  shall  fraudulently 
forge  or  alter,  or  shall  offer,  utter,  dispose  of,  or  put  off,  knowing  the 
same  to  be  forged  or  fraudulently  altered,  any  debenture  issued  under 
any  lawful  authority  whatsoever,  either  within  her  Majesty's  domin- 
ions or  elsewhere,  shall  be  guilty  of  felony,  and  being  convicted  thereof 
shall  be  liable,  at  the  discretion  of  the  court,  to  be  kept  in  penal  ser- 
vitude for  any  term  not  exceeding  fourteen  years  and  not  less  than 
three  [now  five]  years,  or  to  be  imprisoned  for  any  term  not  exceeding 
two  years,  with  or  without  hard  labor,  and  with  or  without  solitary 
confinement." 

Forging  proceedings  of  courts  of  record.  By  s.  27,  "whoso- 
ever shall  forge  or  fraudulently  alter,  or  shall  offer,  utter,  dispose  of, 
or  put  off,  knowing  the  same  to  be  forged  or  fraudulently  altered,  any 
record,  writ,  return,  panel,  process,  rule,  order,  warrant,  interrogatory, 
deposition,  affidavit,  affirmation,  recognizance,  cognovit  actionem,  or 
warrant  of  attorney,  or  any  original  docimient  whatsoever  of  or  be- 
longing to  any  court  of  record,  or  any  bill,  petition,  process,  notice, 
rule,  answer,  pleading,  interrogatory,  deposition,  affidavit,  affirmation, 
report,  order,  or  decree,  or  any  original  document  whatsoever  of  or  be- 
longing to  any  court  of  equity  or  court  of  admiralty  in  England  or  Ire- 
land, or  any  document  or  writing,  or  any  copy  of  any  document  or  writ- 
ing used  or  intended  to  be  used  as  evidence  in  any  court  in  this  section 
mentioned,  shall  be  guilty  of  felony,  and  being  convicted  thereof  shall  be 
liable,  at  the  discretion  of  the  court,  to  be  kept  in  penal  servitude  for  any 
term  not  exceeding  seven  years  and  not  less  than  three  [now  five] 
years,  or  to  be  imprisoned  for  any  term  not  exceeding  two  years,  with 
or  without   hard  labor,  and  with  or  without  solitary  confinement." 

Forging  copies  or  certificates  of  records,  process  of  courts  not 
of  record,  and  using  forged  process.  By  s.  28,  "  whosoever,  being 
the  clerk  of  any  court,  or  other  officer  having  the  custody  of  the  rec- 
ords of  any  court,  or  being  the  deputy  of  any  such  clerk  or  officer, 
shall  utter  any  false  copy  or  certificate  of  any  record,  knowing  the 
same  to  be  false ;  and  whosoever,  other  than  such  clerk,  officer,  or 
deputy,  shall  sign  or  certify  any  copy  or  certificate  of  any  record  as 
such  clerk,  officer,  or  deputy ;  and  whosoever  shall  forge  or  fraudu- 
lently alter,  or  offer,  utter,  dispose  of,  or  put  off,  knoAving  the  same  to 
be  forged  or  fraudulently  altered,  any  coj)y  or  certificate  of  any  record, 


FORGERY.  711 

or  shall  offer,  utter,  dispose  of,  or  put  off  any  copy  or  certificate  of  any 
record  having  thereon  any  false  or  forged  name,  handwriting,  or  sig- 
nature, knowing  the  same  to  be  false  or  forged  ;  and  whosoever  shall 
forge  the  seal  of  any  court  of  record,  or  shall  forge  or  fraudulently 
alter  any  process  of  any  court  other  than  such  courts  as  in  the  last 
preceding  section  mentioned,  or  shall  serve  or  enforce  any  forged  pro- 
cess of  any  court  whatsoever,  knowing  the  same  to  be  forged,  or  shall 
deliver  or  cause  to  be  delivered  to  any  person  any  paper  falsely  pur- 
porting to  be  any  such  process,  or  a  copy  thereof,  or  to  be  any  judgment, 
decree,  or  order  of  any  court  of  law  or  equity,  or  a  copy  thereof, 
knowing  the  same  to  be  false,  or  shall  act  or  profess  to  act  under  any 
such  false  process,  knowing  the  same  to  be  false,  shall  be  guilty  of 
*felony,  and  being  convicted  thereof  shall  be  liable,  at  the  dis-  rjicKKft 
cretion  of  the  court,  to  be  kept  in  penal  servitude  for  any  term  L 
not  exceeding  seven  years,  and  not  less  than  three  [now  five]  years,  or 
to  be  imprisoned  for  any  term  not  exceeding  two  years,  with  or  with- 
out hard  labor,  and  with  or  without  solitary  confinement." 

See  also  9  &  10  Vict.  c.  95,  s.  57,  which  contains  a  similar  provision 
as  to  county  court  process. 

Forging  instruments  made  evidence  by  act  of  parliament.     By 

s.  29,  "  whosoever  sliall  forge  or  fraudulently  alter,  or  shall  offer,  utter, 
dispose  of,  or  put  off,  knowing  the  same  to  be  forged  or  fraudulently 
altered,  any  instrument,  whether  written  or  printed,  or  partly  written 
and  partly  printed,  which  is  or  shall  be  made  evidence  by  any  act 
passed  or  to  be  passed,  and  for  which  offence  no  punishment  is 
herein  provided,  shall  be  guilty  of  felony,  and  being  convicted  thereof 
shall  be  liable,  at  the  discretion  of  the  court,  to  be  kept  in  penal  servi- 
tude for  any  term  not  exceeding  seven  years  and  not  less  than  three 
[now  five]  years,  or  to  be  imprisoned  for  any  term  not  exceeding  two 
years,  with  or  without  hard  labor,  and  with  or  without  solitary  con- 
finement." 

Forging  court  rolls.  By  s.  30,  "  whosoever  shall  forge  or  alter,  or 
shall  offer,  utter,  dispose  of,  or  put  off,  knowing  the  same  to  be  forged 
or  altered,  any  court  roll  or  copy  of  any  court  roll,  relating  to  any 
copyhold  or  customary  estate,  with  intent  to  defraud,  shall  be  guilty 
of  felony,  and  being  convicted  thereof  shall  be  liable,  at  the  discretion 
of  the  court,  to  be  kept  in  penal  servitude  for  life  or  for  any  term  not 
less  than  three  [now  five]  years,  or  to  be  imprisoned  for  any  term  not 
exceeding  two  years,  with  or  without  hard  labor,  and  with  or  without 
solitary  confinement." 

Forging  register  of  deeds.  By  s.  31,  "whosoever  shall  forge  or 
fraudulently  alter,  or  shall  offer,  utter,  dispose  of,  or  put  off,  knowing 
the  same  to  be  forged  or  fraudulently  altered,  any  memorial,  affidavit, 
affirmation,  entry,  certificate,  indorsement,  document,  or  writing,  made 
or  issued  under  the  provisions  of  any  act  passed  or  hereafter  to  be 
passed  for  or  relating  to  the  registry  of  deeds,  or  shall  forge  or  coun- 


712  FORGERY. 

terfeit  the  seal  of  or  belonging  to  any  office  for  the  registry  of  deeds, 
or  any  stamp  or  impression  of  any  such  seal ;  or  shall  forge  any 
name,  handwriting,  or  signature,  purporting  to  be  the  name,  hand- 
writing, or  signature  of  any  person  to  any  such  memorial,  affidavit, 
affirmation,  entry,  certificate,  indorsement,  document,  or  writing, 
which  shall  be  required  or  directed  to  be  signed  by  or  by  virtue 
of  any  act  passed  or  to  be  passed,  or  shall  offer,  utter,  dispose  of, 
or  put  off  any  such  memorial  or  other  writing  as  in  this  section 
before  mentioned,  having  thereon  any  such  forged  stamp  or  impres- 
sion of  any  such  seal,  or  any  such  forged  name,  handwriting,  or 
signature,  knowing  the  same  to  be  forged,  shall  be  guilty  of  felony, 
and  being  convicted  thereof  shall  be  liable,  at  the  discretion  of  the 
court,  to  be  kept  in  penal  servitude  for  any  term  not  exceeding  four- 
teen years  and  not  less  than  three  [now  five]  years,  or  to  be  imprisoned 
for  any  term  not  exceeding  two  years,  with  or  without  hard  labor,  and 
with  or  without  solitary  confinement." 

^__--|  *Porging  orders  of  justice,  recognizances,  affidavits,  etc. 
-I  By  s.  32,  "  whosoever,  with  intent  to  defraud,  shall  forge  or 
alter,  or  shall  offer,  utter,  dispose  of,  or  put  off,  knowing  the  same  to  be 
forged  or  altered,  any  summons,  conviction,  order,  or  warrant  of  any  jus- 
tice of  the  peace,  or  any  recognizance  puqiorting  to  have  been  entered 
into  before  any  justice  of  the  peace,  or  other  officer  authorized  to  take 
the  same,  or  any  examination,  deposition,  affidavit,  affirmation,  or  solemn 
declaration,  taken  or  made  before  any  justice  of  the  peace,  shall  be 
guilty  of  felony,  and  being  convicted  thereof  shall  be  liable,  at  the  dis- 
cretion of  the  court,  to  be  kept  in  penal  servitude  for  the  term  of  three 
[now  five]  years,  or  to  be  imprisoned  for  any  term  not  exceeding  two 
years,  with  or  without  hard  labor,  and  with  or  without  solitary  con- 
finement." 

Forging  name  of  officer  of  any  court,  or  of  the  bank  of  Eng- 
land or  Ireland.  By  s.  33,  "  whosoever,  with  intent  to  defraud,  shall 
forge  or  alter  any  certificate,  report,  entry,  indorsement,  declaration  of 
trust,  note,  direction,  authority,  instrument,  or  writing  made,  or  pur- 
porting or  appearing  to  be  made,  by  the  accountant-general  (now  pay- 
master-general or  his  deputy  clerk  or  officer,  35  &  36  Vict.  c.  44,  s. 
11),  or  any  other  officer  of  the  Court  of  Chancery  in  England  or  Ire- 
land, or  by  any  judge  or  officer  of  the  Landed  Estates  Court  in  Ire- 
land, or  by  any  officer  of  any  court  in  England  or  Ireland,  or  by  any 
cashier  or  other  officer  or  clerk  of  the  governor  and  company  of  the 
bank  of  England  or  Ireland,  or  the  name,  handwriting,  or  signature 
of  any  such  accountant-general,  judge,  cashier,  officer,  or  clerk  as 
aforesaid,  or  shall  offer,  utter,  dispose  of,  or  put  off,  any  such  certifi- 
cate, repc>rt,  entry,  indorsement,  declaration  of  trust,  note,  direction, 
authority,  instrument,  or  writing,  knowing  the  same  to  be  forged  or 
altered,  shall  be  guilty  of  felony,  and  being  convicted  thereof  shall  be 
liable,  at  the  discretion  of  the  court,  to  be  kept  in  penal  servitude  for 
any  term  not  exceeding  fourteen  years  and  not  less  than  three  [now 


FORGERY.  713 

five]  years,  or  to  be  imprisoned  for  any  term  not  exceeding  two  years, 
with  or  without  hard  labor,  and  with  or  without  solitary  confine- 
ment." 

Forging  of  marriage  license  or  certificate.  By  s.  35,  "  whosoever 
shall  forge  or  fraudulently  alter  any  license  of  or  certificate  for  mar- 
riage, or  shall  offer,  utter,  dispose  of,  or  put  oif  any  such  license  or 
certificate,  knowing  the  same  to  be  forged  or  fraudulently  altered,  shall 
be  guilty  of  felony,  and  being  convicted  thereof  shall  be  liable,  at  the 
discretion  of  the  court,  to  be  kept  in  penal  servitude  for  any  term  not 
exceeding  seven  years  and  not  less  than  three  [now  five]  years,  or  to 
be  imprisoned  for  any  term  not  exceeding  two  years,  with  or  without 
hard  labor,  and  with  or  without  solitary  confinement." 

Destroying,  altering,  or  forging  parish  registers,  and  giving  false 
certificates.  By  s.  36,  "  whosoever  shall  unlawfully  destroy,  deface, 
or  injure,  or  cause  or  permit  to  be  destroyed,  defaced,  or  injured,  any 
register  of  births,  baptisms,  marriages,  deaths,  or  burials,  which  now 
is  or  hereafter  shall  be  by  law  authorized  or  required  to  be  kept  in 
England  or  Ireland,  or  any  part  of  any  such  register,  or  any  certified 
copy  of  any  such  register,  or  any  part  thereof,  or  shall  forge  or  fraud- 
ulently alter  in  any  such  register,  any  entry  relating  to  any  birth, 
*baptism,  marriage,  death,  or  burial,  or  any  part  of  such  regis-  r:(crp-Q 
ter,  or  any  certified  copy  of  such  register,  or  of  any  part  thereof,  ■- 
or  shall  knowingly  and  unlawfully  insert  or  cause  or  permit  to  be 
inserted  in  any  such  register,  or  in  any  certified  copy  thereof,  any  false 
entry  of  any  matter  relating  to  any  birth,  baptism,  marriage,  death,  or 
burial,  or  shall  knowingly  and  unlawfully  give  any  false  certificate  re- 
lating to  any  birth,  baptism,  marriage,  death,  or  burial,  or  shall  certify- 
any  writing  to  be  a  copy  or  extract  from  any  such  register,  knoAving 
such  writing  or  part  of  such  register  whereof  such  copy  or  extract 
shall  be  so  given  to  be  false  in  any  material  particular,  or  shall  forge 
or  counterfeit  the  seal  of  or  belonging  to  any  register-office,  or  burial 
board,  or  shall  offer,  utter,  dispose  of,  or  put  off'  any  such  register, 
entry,  certified  copy,  certificate,  or  seal,  knowing  the  same  to  be  false, 
forged,  or  altered,  or  shall  offer,  utter,  dispose  of,  or  put  off  any  copy 
of  any  entry  in  any  such  register,  knowing  such  entry  to  be  false, 
forged,  or  altered,  shall  be  guilty  of  felony,  and  being  convicted 
thereof  shall  be  liable,  at  the  discretion  of  the  court,  to  be  kept  in 
j)enal  servitude  for  life,  or  for  any  term  not  less  than  three  [now  five] 
years,  or  to  be  imprisoned  for  any  term  not  exceeding  two  years,  with 
or  without  hard  labor,  and  with  or  without  solitary  confinement." 

Making  false  entries  in  copies  of  register    sent  to   registrar. 

By  s.  37,  "  whosoever  shall  knowingly  and  wilfully  insert,  or  cause 
or  permit  to  be  inserted,  in  any  copy  of  any  register  directed  or  re- 
quired by  law  to  be  transmitted  to  any  registrar  or  other  officer  any 
false  entry  of  any  matter  relating  to  any  baptism,  marriage,  or  burial, 
or  shall  forge  or  alter,  or  shall  offer,  utter,  dispose  of,  or  put  off,  know- 
ing the  same  to  be  forged  or  altered,  any  copy  of  any  register  so 


714  FORGERY. 

directed  or  required  to  be  transmitted  as  aforesaid,  or  shall  know- 
ingly and  wilfully  sign  or  verify  any  copy  of  any  register  so  "directed 
or  required  to  be  transmitted  as  aforesaid,  which  copy  shall  be 
false  in  any  part  thereof,  knowing  the  same  to  be  false,  or  shall  un- 
lawfully destroy,  deface,  or  injure,  or  shall,  for  any  fraudulent  pur- 
pose, take  from  its  place  of  deposit,  or  conceal,  any  such  copy  of  any 
register,  shall  be  guilty  of  felony,  and  being  convicted  thereof  shall 
be  liable,  at  the  discretion  of  the  court,  to  be  kept  in  penal  servitude 
for  life,  or  for  any  term  not  less  than  three  [now  five]  years,  or  to  be 
imprisoned  for  any  term  not  exceeding  two  years,  with  or  without 
hard  labor,  and  with  or  without  solitary  confinement." 

Demanding  property  on  forged  instruments.  Bys.  38,  "whoso- 
ever, with  intent  to  defraud,  shall  demand,  receive,  or  obtain,  or  cause, 
or  procure  to  be  delivered  or  paid  to  any  person,  or  endeavor  to  re- 
ceive or  obtain,  or  to  cause  or  procure  to  be  delivered  or  paid  to  any 
person,  any  chattel,  money,  security  for  money,  or  other  property 
whatsoever,  under,  upon,  or  by  virtue  of  any  forged  or  altered  instru- 
ment whatsoever,  knowing  the  same  to  be  forged  or  altered,  or  under, 
upon,  or  by  virtue  of  any  probate  or  letters  of  administration,  know- 
ing the  will,  testament,  codicil,  or  testamentary  writing  on  which 
such  probate  or  letters  of  administration  shall  have  been  obtained 
to  have  been  forged  or  altered,  or  knowing  such  probate  or  letters 
of  administration  to  have  been  obtained  by  any  false  oath, 
affirmation,  or  affidavit,  shall  be  guilty  of  felony,  and  being  con- 
victed thereof  shall  be  liable,  at  the  discretion  of  the  court,  to  be 
^-P-q-i  *kept  in  penal  servitude  for  any  term  not  exceeding  fourteen 
-•  years,  and  not  less  than  three  [now  five]  years,  or  to  be  impris- 
oned for  any  term  not  exceeding  two  years,  with  or  without  hard  labor, 
and  with  or  without  solitary  confinement."  ^ 

Forging  any  instrument  however  designated  which  is  in  law  a 
will,  deed,  bill  of  exchange,  etc.  By  s.  39,  "  where  by  this  or  by 
any  other  act  any  other  person  is  or  shall  hereafter  be  made  liable  to 
punishment  for  forging  or  altering,  or  for  offering,  uttering,  dis- 
posing of,  or  putting  off,  knowing  the  same  to  be  forged  or  altered, 
any  instrument  or  writing  designated  in  such  act  by  any  special 
name  or  description,  and  such  instrument  or  writing,  however  desig- 
nated, shall  be  in  law  a  will,  testament,  codicil,  or  a  testamentary 
writing,  or  a  deed,  bond,  or  writing  obligatory,  or  a  bill  of  exchange, 
or  a  promissory  note  for  the  payment  of  money,  or  an  indorsement  on 
or  assignment  of  a  bill  of  exchange  or  promissory  note  for  the  pay- 
ment of  money,  or  an  acceptance  of  a  bill  of  exchange,  or  an  under- 
taking, M^arrant,  order,  authority,  or  request  for  the  payment  of  money, 
or  an  indorsement  on  or  assignment  of  an  undertaking,  warrant,  order, 
authority,  or  request  for  the  payment  of  money,  within  the  true  intent 
and  meaning  of  this  act,  in  every  such  case  the  person  forging  or 

^  A  telegram  asking  for  money  may  be  the  subject  of  a  forgery,  Dooley  v.  State, 
21  Tex.  App.  549. 


FORGEEY.  715 

altering  such  instrument  or  writing,  or  offering,  uttering,  disposing  of, 
or  putting  off  such  instrument  or  writing,  knowing  the  same  to  be 
forged  or  altered,  may  be  indicted  as  an  offender  against  this  act,  and 
punished  accordingly." 

Forging  documents  purporting  to  be  made  abroad  or  bills  of  ex- 
change, etc.,  passable  abroad.  By  s,  40,  "  where  the  forging  or 
altering  any  writing  or  matter  whatsoever,  or  the  offering,  uttering, 
disposing  of,  or  putting  off  any  writing  or  matter  whatsoever,  know- 
ing the  same  to  be  forged  or  altered,  is  in  this  act  expressed  to  be  an 
offence,  if  any  person  shall,  in  England  or  Ireland,  forge  or  alter, 
or  offer,  utter,  dispose  of,  or  put  off,  knowing  the  same  to  be  forged 
or  altered,  any  such  writing,  or  matter,  in  whatsoever  place  or  country 
out  of  England  and  Ireland,  whether  under  the  dominion  of  her 
majesty  or  not,  such  writing  or  matter  may  purport  to  be  made  or 
may  have  been  made,  and  in  whatever  language  the  same  or  any 
part  thereof  may  be  expressed,  every  such  person,  and  every  person 
aiding,  abetting,  or  counselling  such  person  shall  be  deemed  to  be 
an  offender  within  the  meaning  of  this  Act,  and  shall  be  punishable 
thereby  in  the  same  manner  as  if  the  writing  or  matter  had  purported 
to  be  made  or  had  been  made  in  England  or  Ireland ;  and  if  any 
person  shall  in  England  or  Ireland  forge  or  alter,  or  offer,  utter, 
dispose  of,  or  put  off,  knowing  the  same  to  be  forged  or  altered,  any 
bill  of  exchange,  or  any  promissory  note  for  the  payment  of  money, 
or  any  indorsement  on  or  assignment  of  any  bill  of  exchange  or  promis- 
sory note  for  the  payment  of  money,  or  any  acceptance  of  any  bill 
of  exchange,  or  any  undertaking,  warrant,  order,  authority,  or 
request  for  the  payment  of  money,  or  for  the  delivery  or  transfer  of 
any  goods  or  security,  or  any  deed,  bond,  or  writing  obligatory  for 
the  payment  of  money  (whether  such  deed,  bond,  or  writing  obliga- 
tory shall  be  made  only  for  the  payment  of  money,  or  for  the  pay- 
ment of  money  together  with  some  other  purpose),  or  any  indorse- 
ment on  or  assignment  of  any  such  undertaking,  Avarrant,  order, 
authority,  request,  deed,  bond,  or  writing  obligatory,  in  whatsoever 
*place  or  country  out  of  England  and  Ireland,  whether  under  r^rar) 
the  dominion  of  her  majesty  or  not,  tlie  money  payable  or  se-  L 
curcd  by  such  bill,  note,  undertaking,  warrant,  order,  authority,  request, 
deed,  bond,  or  writing  obligatory,  may  be,  or  may  purport  to  be  payable, 
and  in  whatever  language  the  same  respectively  or  any  part  thereof 
may  be  expressed,  and  whether  such  bill,  note,  undertaking,  warrant, 
order,  autliority,  or  request  be  or  be  not  under  seal,  every  such  person, 
and  every  person  aiding,  abetting,  or  counselling  such  person, 
shall  be  deemed  to  be  an  offender  within  the  meaning  of  this  act, 
and  shall  be  punishable  thereby  in  the  same  manner  as  if  the  money 
had  been  payable  or  had  purported  to  be  payable  in  England  or 
Ireland." 

Offences  triable  where  prisoner  apprehended.  By  s.  41,  "  If  any 
person  shall  commit  any  offence  against  this  act,  or  shall  commit  any 


716  FORGERY. 

offence  of  forging  or  altering  any  matter  whatsoever,  or  of  offering, 
uttering,  disposing  of,  or  putting  off  any  matter  whatsoever,  knowing 
the  same  to  be  forged  or  altered,  whether  the  offence  in  any  such  case 
shall  be  indictable  at  common  law,  or  by  virtue  of  any  act  passed 
or  to  be  passed,  every  such  offender  may  be  dealt  with,  indicted,  tried, 
and  punished  in  any  county  or  place  in  which  he  shall  be  appre- 
hended or  be  in  custody,  in  the  same  manner  in  all  resjiects  as  if  his 
offence  had  been  actually  committed  in  that  county  or  place ;  and 
every  accessory  before  or  after  the  fact  to  any  such  offence,  if  the  same 
be  a  felony,  and  every  person  aiding,  abetting,  or  counselling  the  com- 
mission of  any  such  offence,  if  the  same  be  a  misdemeanor,  may  be 
dealt  with,  indicted,  tried,  and  punished,  in  any  county  or  place  in 
which  he  shall  be  apprehended  or  be  in  custody,  in  the  same  manner 
in  all  respects  as  if  his  offence,  and  the  offence  of  his  principal,  had 
been  actually  committed  in  such  county  or  place." 

Description  of  instruments  in  indictments  for  forgery.  By  s.  42, 
"  in  any  indictment  for  forging,  altering,  offering,  uttering,  disposing 
of,  or  putting  off  any  instrument  it  shall  be  sufficient  to  describe 
such  instrument  by  any  name  or  designation  by  which  the  same  may 
be  usually  known,  or  by  the  purport  thereof,  without  setting  out  any 
copy  or  fac-simile  thereof,  or  otherwise  describing  the  same  or  the 
value  thereof."  • 

Description  of  instrument  in  indictments  for  engraving,  etc.    By 

s.  43,  "  in  any  indictment  for  engraving  or  making  the  Avhole  or  any 
part  of  any  instrument,  matter  or  thing  whatsoever,  or  for  using  or 
having  the  unlawful  custody  or  possession  of  any  plate  or  other 
material  upon  which  the  whole  or  any  part  of  any  instrument,  matter, 
or  thing  whatsoever  shall  have  been  engraved  or  made,  or  for  having 
the  unlawful  custody  or  possession  of  any  paper  upon  whicli  the 
whole  or  any  part  of  any  instrument,  matter,  or  thing  whatsoever 
shall  have  been  made  or  printed,  it  shall  be  sufficient  to  describe 
such  instrument,  matter,  or  thing  by  any  name  or  designation  by 
whicli  the  same  may  be  usually  known,  without  setting  out  any  copy 
or  fac-simile  of  the  whole  or  any  part  of  such  instrument,  matter,  or 
thing." 

Intent  to  defraud  particular  persons  need  not  be  alleged  or 
proved.  By  s.  44,  "  it  shall  be  sufficient,  in  any  indictment  for  forging, 
*'"fin  *^ltering,  uttering,  offering,  disposing  of,  or  putting  off  any 
-I  instrument  whatsoever,  where  it  sliall  be  neces^"ary  to  allege 
any  intent  to  defraud,  to  allege  tliat  the  party  accused  did  the  act  with 
intent  to  defraud,  without  alleging  an  intent  to  defraud  any  particular 
person  ;  and  on  the  trial  of  any  such  offence  it  shall  not  bo  necessary 
to  prove  an  intent  to  defraud  any  particular  ])erson,  but  it  shall  be 
sufficient  to  prove  that  the  party  accused  did  the  act  charged,  with  an 
intent  to  defraud." 


FORGERY.  717 

Interpretation  of  the  term  "  possession."  By  s.  45,  "  where  the 
having  any  matter  in  the  custody  or  possession  of  any  person  is  in 
this  act  expressed  to  be  an  offence,  if  any  person  sliall  have  any  such 
matter  in  his  personal  custody  or  possession,  or  shall  knowingly  and 
wilfully  have  any  such  matter  in  the  actual  custody  and  possession  of 
any  other  person,  or  shall  knowingly  and  wilfully  have  any  such  mat- 
ter in  any  dwelling-house  or  other  building,  lodging,  apartment,  field 
or  other  place,  open  or  inclosed,  whether  belonging  to  or  occupied  by 
himself  or  not,  and  whether  such  matter  shall  be  so  had  for  his  own 
use  or  for  the  use  or  benefit  of  another,  every  such  person  shall  be 
deemed  and  taken  to  have  such  matter  in  his  custody  or  possession 
within  the  meaning  of  this  act." 

Punishment  of  forgery  under  statutes  not  repealed.  By  s.  47, 
"whosoever  shall,  after  the  commencement  of  this  act,  be  convicted  of 
any  offence  which  shall  have  been  subjected  by  any  act  or  acts  to  the 
same  pains  and  penalties  as  are  imposed  by  the  act  passed  in  the  fifth 
year  of  the  reign  of  Queen  Elizabeth,  intituled  '  An  Act  against 
Forgers  of  False  Deeds  and  Writings,'  for  any  of  the  offences  first 
enumerated  in  the  said  act,  shall  be  guilty  of  felony,  and  shall,  in  lieu 
of  such  pains  and  penalties,  be  liable,  at  the  discretion  of  the  court, 
to  be  kept  in  penal  servitude  for  any  term  not  exceeding  fourteen 
years  and  not  less  than  three  [now  five]  years,  or  to  be  imprisoned  for 
any  term  not  exceeding  two  years,  with  or  without  hard  labor,  and 
with  or  without  solitary  confinement."  And  by  s.  48,  "  where  by  any 
act  now  in  force  any  person  falsely  making,  forging,  counterfeiting, 
erasing,  or  altering  any  matter  whatsoever,  or  uttering,  publishing, 
offering,  disposing  of,  putting  away,  or  making  use  of  any  matter 
whatsoever,  knowing  the  same  to  have  been  falsely  made,  forged, 
counterfeited,  erased,  or  altered,  or  any  person  demanding  or  endeav- 
oring to  receive  or  have  any  thing,  or  to  do  or  cause  to  be  done 
any  act  upon  or  by  virtue  of  any  matter  whatsoever,  knowing  such 
matter  to  have  been  falsely  made,  forged,  counterfeited,  erased,  or 
altered,  would  according  to  the  provisions  contained  in  any  such  act 
be  guilty  of  felony,  and  would,  before  the  passing  of  tliQ  act  of  the 
first  year  of  King  William  tlie  Fourth,  chapter  sixty-six,  have  been 
liable  to  suffer  death  as  a  felon  ;  or  where  by  any  act  now  in  force 
any  person  falsely  personating  another,  or  falsely  acknowledging  any 
thing  in  the  name  of  another,  or  falsely  representing  any  other  per- 
son than  the  real  party  to  be  such  real  party,  or  wilfully  malcing  a 
false  entry  in  any  book,  account,  or  document,  or  in  any  manner  wil- 
fully falsifying  any  part  of  any  book,  account,  or  document,  or  wil- 
fully making  a  transfer  of  any  sto(!k,  annuity,  or  fund  in  the  name 
of  any  person  not  being  the  owner  thereof,  or  knowingly  taking  any 
false  oath,  or  knowingly  making  any  false  affidavit  or  false  affirmation, 
or  demanding  or  receiving  any  money  or  other  thing  by  virtue  of  any 
*probate  or  letters  of  administration,  knowing  the  will  on  r*(rp9 
which  such  probate  shall  have  been  obtained  to  have  been  false  ^ 
or  forged   or  knowing  such  probate  or  letters  of  administration  to 


718  FORGERY. 

have  been  obtained  by  means  of  false  oath  or  false  affirmation,  Avould, 
according  to  the  provisions  contained  in  any  such  act,  be  guilty  of 
felony,  aud  would,  before  the  passing  of  the  said  act  of  the  first  year 
of  King  William  the  Fourth,  have  been  liable  to  suffer  death  as  a 
felon  ;  or  where  by  any  act  now  in  force  any  person  making  or  using, 
or  knowingly  having  in  his  custody  or  possession  any  frame,  mould, 
or  instrument  for  the  making  of  paper,  with  certain  words  visible 
in  the  substance  thereof,  or  any  person  making  such  paper,  or  caus- 
ing certain  words  to  appear  visible  in  the  substance  of  any  paper, 
would,  according  to  the  provisions  contained  in  any  such  act,  be 
guilty  of  felony,  and  would,  before  the  passing  of  the  said  act  of 
the  first  year  of  King  William  the  Fourth,  have  been  liable  to  suffer 
deatli  as  a  felon  ;  then,  and  in  each  of  the  several  cases  aforesaid,  if 
any  person  shall,  after  the  commencement  of  this  act,  be  convicted  of 
any  such  felony  as  is  hereinbefore  in  this  section  mentioned,  or  of  aid- 
ing, abetting,  counselling,  or  procuring  the  commission  thereof,  and 
the  same  shall  not  be  punishable  under  any  of  the  other  provisions  of 
this  act,  every  such  person  shall  be  liable,  at  the  discretion  of  the  court, 
to  be  kept  in  penal  servitude  for  life,  or  for  any  term  not  less  than 
three  [now  five]  years,  or  to  be  imprisoned  for  any  term  not  exceeding 
two  years,  Avith  or  without  hard  labor,  and  with  or  without  solitary 
confinement." 

Principals  in  the  second  degree  and  accessories.  By  section  49, 
"in  the  case  of  every  felony  punishable  under  this  act,  every  principal 
in  the  second  degree,  and  every  accessory  before  the  fact,  shall  be 
punishable  in  the  same  manner  as  the  principal  in  the  first  degree  is 
by  this  act  punishable  ;  and  every  accessory  after  the  fact  to  any  fel- 
ony punishable  under  this  act  shall  on  conviction  be  liable,  at  the  dis- 
cretion of  the  court,  to  be  imprisoned  for  any  term  not  exceeding  two 
years,  with  or  without  hard  labor,  and  with  or  without  solitary  con- 
finement ;  and  every  person  who  shall  aid,  abet,  counsel,  or  procure 
the  commission  of  any  misdemeanor  punishable  under  this  act  shall  be 
liable  to  be  proceeded  against,  indicted,  and  punished  as  a  principal 
offender."    , 

Forging  seal,  stamp,  or  signature  of  public  documents.     By  8 

&  9  Vict.  c.  113,  s.  4,  "if  any  person  shall  forge  the  seal,  stamp,  or 
signature  of  any  such  certificate,  official  or  public  document,  or  docu- 
ment or  proceeding  of  any  corporation,  or  joint  stock  or  other  com- 
pany, or  of  any  certified  copy  of  any  document,  by-law,  entry  in  any 
register  or  other  book  or  other  proceeding  as  aforesaid,  or  shall  tender 
in  evidence  any  such  certificate,  official  or  public  document,  or  docu- 
ment or  proceeding  of  any  corporation  or  joint  stock  or  other  com- 
pany, or  any  certified  copy  of  any  document,  by-law,  entry  in  any 
register  or  other  book,  or  of  any  other  proceeding,  with  a  false  or 
counterfeit  seal,  stamp,  or  signature  thereto,  knowing  the  same  to  be 
false  or  counterfeit,  whether  such  seal,  stamp,  or  signature  be  those 
of  or  relating  to  any  corporation  or  company  already  established,  or 


FORGERY.  719 

to  any  corporation  or  company  to  be  hereafter  established ;  or  if  any 
person  shall  forge  the  signature  of  any  such  judge  as  aforesaid  to  any 
order,  decree,  certificate,  or  other  judicial  or  official  document,  or 
*shall  tender  in  evidence  any  order,  decree,  certificate,  or  other  r*fr/>o 
judicial  or  official  document,  with  a  false  or  counterfeit  signa-  '- 
ture  of  any  such  judge  as  aforesaid  tliereto,  knowing  the  same  to  be 
false  or  counterfeit ;  or  if  any  person  shall  print  any  copy  of  any  pri- 
vate act  of,  or  of  the  journals  of  either  house  of  parliament,  which 
copy  shall  falsely  purport  to  have  been  printed  by  the  printers  to 
the  crown,  or  by  the  printers  to  either  house  of  parliament  [or  under 
the  superintendence  or  authority  of  Her  Majesty's  stationery  office, 
45  Vict.  c.  9,  ss.  2,  3],  or  by  any  or  either  of  them ;  or  if  any  person 
shall  tender  in  evidence  any  such  copy,  knowing  that  the  same  was 
not  printed  by  the  person  or  persons  by  whom  it  so  purports  to  have 
been  printed,  every  such  person  shall  be  guilty  of  felony,  and  shall, 
upon  conviction,  be  liable  to  transportation  for  seven  years,  or  to  im- 
prisonment for  any  term  not  more  than  three  [now  five]  nor  less  than 
one  year,  with  hard  labor." 

Forging  seal,  stamp,  or  signature  of  documents  made  evidence 
by  statute.  By  the  14  &  15  Vict.  c.  99,  s.  17,  "if  any  person  shall 
forge  the  seal,  stamp,  or  signature  of  any  document  in  this  act  men- 
tioned or  referred  to,  or  shall  tender  in  evidence  any  such  document 
with  a  false  or  counterfeit  seal,  stamp,  or  signature  thereto,  knowing 
the  same  to  be  false  or  counterfeit,  he  shall  be  guilty  of  felony,  and 
shall  upon  conviction  be  liable  to  transportation  for  seven  jears,  or  to 
imprisonment  for  any  term  not  exceeding  three  years  nor  less  than 
one  year,  with  hard  labor ;  and  whenever  any  such  document  shall 
have  been  admitted  in  evidence  by  virtue  of  this  act,  the  court  or  the 
person  who  shall  have  admitted  the  same  may,  at  the  request  of  any 
party  against  whom  the  same  is  so  admitted  in  evidence,  direct  that 
the  same  shall  be  impounded  and  kept  in  the  custody  of  some  officer 
of  the  court  or  other  proper  person  for  such  period  and  subject  to  such 
conditions  as  to  the  said  court  or  person  shall  seem  meet;  and  every 
person  who  shall  be  charged  with  committing  any  felony  under  this 
act,  or  under  the  8  &  9  Vict.  c.  113,  may  be  dealt  with,  indicted,  tried, 
and,  if  convicted,  sentenced,  and  his  offences  may  be  laid  and  charged 
to  have  been  committed  in  the  county,  district,  or  place  in  which  he 
shall  be  apprehended,  or  be  in  custody ;  and  every  accessory  before  or 
after  the  fact  to  any  such  offence  may  l)e  dealt  with,  indicted,  tried, 
and,  if  convicted,  sentenced,  and  his  offence  laid  and  charged  to  have 
been  committed  in  any  county,  district,  or  place  in  which  the  principal 
offender  may  be  tried." 

Forging  trade  marks,  etc.  By  the  25  &  26  Vict.  c.  88,  s.  2,  forg- 
ing trade  marks  is  made  a  misdemeanor ;  and  by  s.  3,  applying,  etc., 
forged  trade  marks  to  goods,  etc.,  is  made  a  misdemeanor.  By  s.  4, 
knowingly  selling  goods  having  forged  trade  marks  upon  them  is  a 
finable  offence. 


720  FORGERY. 

Forgery  in  other  cases.  There  are  innumerable  provisions  scat- 
tered tliroiigh  the  statute  book  which  relate  to  the  crime  of  forgery. 
Many  of  these  relate  to  offences  which  are  also  provided  for  by  the 
24  &  25  Vict.  c.  98. 

It  is  always  usual,  when  an  act  is  passed  which  creates  government 
securities,  to  provide  specially  against  the  offence  of  forging  such 
securities.  If  this  was  necessary  before,  it  is  necessary  since  the 
24  &  25  Vict.  c.  98,  with  respect  to  exchequer  bills,  etc.,  the 
j^_„  .-.  *clause  relating  to  that  class  of  securities  (s.  8)  not  containing 
J  the  prospective  words  of  the  clause  (s.  7)  relating  to  East  India 
securities. 

As  to  the  forging  and  uttering,  fraudulently  mutilating  or  erasing, 
of  stamps,  or  of  the  making  or  possessing  materials  for  forged  stamps, 
see  33  &  34  Vict.  c.  98,  ss.  18,  19,  20,  21,  22,  23. 

As  to  forging  stamps  on  gold  aud  silver  wares,  see  7  &  8  Vict.  c. 
22,  s.  2. 

As  to  forgery  of  certificates  annexed  to  a  copy  or  extract  of  a  pro- 
clamation, order,  or  regulation  issued  by  the  Queen,  the  Privy  Coun- 
cil, etc.,  see  31  &  32  Vict.  c.  37. 

As  to  the  forgery  of  non-parochial  registers,  see  the  3  &  4  Vict.  c. 
92,  s.  8  ;  for  punishment,  see  7  &  8  Geo.  4,  c.  28,  ss.  8  &  9 ;  and  the 
7  Will.  4  &  1  Vict.  c.  90,  s.  5. 

As  to  forgeries  relating  to  the  navy,  see  the  28  &  29  Vict.  c.  124, 
s.  6.  5  &  6  Will.  4,  c  24,  s.  3,  forgeries  relating  to  service  in  the 
navy.  7  Geo.  4,  c.  16,  false  certificate  or  representation  as  to  Chelsea 
Hospital ;  s.  38,  false  personation  of  officers  and  soldiers  entitled  to 
pay,  forging  their  names,  etc.  2  &  3  Will.  4,  c.  53,  s.  49,  forgeries 
relating  to  officers  entitled  to  prize-money,  or  to  the  officers  of  Chelsea 
Hospital.  19  &  20  Vict.  c.  15,  s.  5,  as  to  both  hospitals.  2  &  3  Vict, 
c.  51,  forging  documents  relating  to  pensions  granted  for  service  in  the 
army,  navy,  royal  marines,  and  ordnance.  19  &  20  Vict.  c.  41,  s.  6, 
as  to  forgeries  relating  to  seamen's  savings  banks. 

Forging  the  name  of  any  commissioner  or  of  the  comptroller-gen- 
eral, etc.,  of  the  customs,  see  39  &  40  Vict.  c.  36,  s.  28.  Unauthorized 
persons  making  paper  in  imitation  of  excise  paper,  and  persons  forg- 
ing or  counterfeiting  plates  or  types,  are  guilty  of  felony,  and  subject 
to  transportation,  by  the  2  &  3  Will.  4,  c.  16  (U.  K.),  s.  3 ;  and  by  s. 
4,  persons  counterfeiting  permits,  or  uttering  forged  permits,  are  like- 
wise guilty  of  felony,  and  punishable  in  the  same  manner.  By  the  7 
&  8  Geo.  4,  c.  53  (U.  K.),  the  forging  of  the  name  of  the  receiver- 
general  or  comptroller  of  excise,  is  made  a  capital  felony ;  but  the 
capital  punishment  is  taken  away  by  1  Will.  4,  c.  66. 

The  forgery  of  contracts  for  the  redemption  of  the  land  tax  is  pro- 
vided against  by  the  52  Geo.  3,  c.  143,  s.  6.  So  the  forging  of  the 
names  of  the  commissioners  of  woods  and  forests,  by  the  10  Geo.  4, 
c.  50,  s.  124. 

Forging  the  name  of  the  paymaster-general  of  the  Court  of  Chan- 
cery, 35  &  36  Vict.  c.  44,  s.  12  ;  or  of  certificate  of  former  convic- 
tion, 7  &  8  Geo.  4,  c.  28,  s.  11  ;  or  forging  any  false  certificate  or  de- 


FORGERY.  721 

claration  under  the  Births  and  Deaths  Registration  Act,  37  &  38  Vict, 
c.  88,  s.  40,  subs.  2. 

Forgeries  of  documents  relating  to  the  suppression  of  the  slave 
trade  are  provided  against  by  the  5  Geo.  4,  c.  113,  s.  10. 

Forgeries  relating  to  the  post-office  are  provided  for  by  the  7  Will. 
4  &  1  Vict.  c.  36,  ss.  33  &  34,  and  3  &  4  Vict.  c.  96,  ss.  22,  29,  30, 
which  also  applies  to  telegraphic  messages.  See  32  &  33  Vict.  c.  73, 
s.  23,  and  43  &  44  Vict.  c.  33,  s.  3. 

Forgeries  relating  to  stage  and  hackney  carriages  are  provided 
against  by  the  2  &  3  Will.  4,  c.  120,  and  the  6  &  7  Vict.  c.  86. 
Forging  licenses  and  documents  under  the  Explosive  Substances  Act, 
38  &  39  Vict.  c.  17,  s.  81;  certificates  or  warranties  under  the  Sale 
of  Food  and  Drugs  Act,  38  &  39  Vict.  c.  63. 

Forging  any  declaration,  warrant,  order,  or  other  instrument,  or 
*any  affidavit  or  affirmation  required  by  the  commissioners  for  r^rRK 
the  reduction  of  the  national  debt,  etc.,  is  provided  against  by  '- 
the  2  &  3  Will.  4,  c.  59,  s.  19,  but  the  capital  punishment  is  taken 
away  by  Stat.  Law  Rev.  Act,  1874. 

Certifying  as  true  any  false  copy  of  or  extract  from  any  of  the 
records  in  the  public  record  office  ;  felony,  transportation  for  life,  or 
not  less  than  seven  years,  or  imprisonment  not  exceeding  four  years  ; 
1  &  2  Vict.  c.  94,  ss.  19  &  20.  Master's  report  as  to  seamen's  charac- 
ter;  17  &  18  Vict.  c.  104,  s.  176. 

Forgery  of  nomination  papers  at  elections  and  ballot  papers  is  pro- 
vided for  by  the  35  &  36  Vict.  c.  33,  s.  3,  extended  to  nomination 
papers  in  municipal  elections,  45  &  46  Vict.  c.  50,  s.  74,  ante,  tit. 
"  Elections."  Forging  seal  or  signature  of  municipal  corporation,  45 
&  46  Vict.  c.  50,  s.  235. 

Fraudulently  procuring  an  entry,  erasure  or  alteration  to  be  made 
on  registry  of  land  under  38  &  39  Vict.  c.  87,  s.  100,  is  a  misde- 
meanor, see  ante,  tit.  "  Concealment  of  Deeds." 

Forgery  under  the  Sea  Fisheries  Act,  1883,  46  &  47  Vict.  c.  22, 
s.  17. 

What  amounts  to  forgery.  The  act  of  forgery  consists  in  the 
making  of  a  false  document  or  writing.  It  will  make  no  diffi^rence 
whether  an  entirely  new  document  be  constructed,  or  whether  an  old 
one  be  altered  so  as  to  have  a  different  effect.  Thus  in  R.  v.  Bleukin- 
sop,  1  Den.  C.  C.  276  ;  1 7  L.  J.,  M.  C.  62,  an  address  was  put  to 
the  name  of  the  drawer  of  a  bill  of  exchange  while  the  bill  was  in 
course  of  completion,  with  the  intention  of  making  the  acceptance  ap- 
pear to  be  that  of  a  different  person,  and  it  was  held  to  be  forgery. 
See  also  R.  v.  Epps,  4  F.  &  F.  81.^ 

^  The  forging  of  any  writing  by  which  a  person  may  be  prejudiced  is  forgery  at 
common  law.  State  v.  Kimball,  50  Me.  409.  Forgery  is  the  signing  by  one  without 
authority,  and  falsely  and  with  intent  to  defraiid,  the  name  of  another  to  an  instru- 
ment wliich,  if  genuine,  might  apparently  be  of  legal  efficacy  or  the  foundation  of  a 
legal  liability.  State  v.  Thompson,  19  la.  299.  Where  an  indictment  for  forgery 
against  the  maker  of  a  promissory  note  charged  the  defendant  with  having  with  fraud- 
ulent intent  written  on  the  back  of  the  note  the  words  "  Eeceived  the  sum  of  forty- 

46 


722  FORGERY. 

In  R.  V.  Autey,  Dears.  &  B.  C.  C.  294  ;  26  L.  J.,  M.  C.  190,  the 
prisoner  was  convicted  npon  an  indictment  for  uttering  a  dividend 
warrant  of  a  railway  company  bearing  a  forged  indorsement.  The 
instrument  was  regularly  drawn  and  signed  by  tlie  secretary  in 
favor  of  one  J.  L.,  and  it  was  stated  upon  it  that  the  name  of  J.  L. 
must  be  indorsed  upon  the  back,  and  it  was  proved  that  without  such 
indorsement  the  bankers  would  not  pay  the  dividend  even  to  J.  L. 
himself.  Tlie  indorsement  v/as  forged,  and  it  was  held  that  the  pris- 
oner was  rightly  convicted,  as  the  making  of  the  indorsement  M^as  a 
forgery.  In  this  case,  R.  v.  Arscott,  6  C  &  P.  408,  25  E.  C.  L.,  in 
which  it  was  decided  that  the  forgery  of  an  indorsement  of  a  receipt  upon 
an  order  for  the  payment  of  money  was  not  within  the  repealed  statute 
11  Geo.  4&  1  Will.  4,  c.  66,  s.  3,  was  much  relied  on  for  the  prisoner. 
But  that  case  seems  to  be  doubted  by  some  of  the  judges,  and  at  any 
rate  is  confined  to  the  section  of  the  act  above  mentioned.  In  R.  v. 
Griffiths,  Dears.  &  B.  C.  C.  548  ;  27  L.  J.,  M.  C.  205,  the  prisoner  was 
a  railway  station-master,  and  it  was  his  duty  to  pay  B.  for  collecting 
and  delivering  parcels  for  the  company,  who  provided  the  prisoner 
with  a  form  in  which  to  enter  under  dilferent  heads  the  sums  so  paid 
by  him.  The  prisoner  then  paid  B.  for  collecting  only,  but  filled  up 
items  of  charges  for  both  delivering  and  collecting,  to  which  he 
obtained  the  signature  of  B.'s  servant,  apparently  acknowledging  the 
receipt  of  the  money.  It  was  held  that  the  prisoner  was  rightly 
convicted  of  forgery.  It  was  once  attempted  under  the  former  law 
to  convict  a  man  for  forgery  for  indorsing  a  bill  as  by  procuration  of 
another  person  without  having  that  person's  authority.  In  R.  v. 
*rppT  *Maddock,  2  Russ.  Cri.  821,  5th  ed.,  the  prisoner  was  clerk  to 
-I  an  attorney,  and  had  no  authority  to  indorse  bills.  He  indorsed 
a  bill  in  the  usual  form,  "  per  pro.  for  R.  F.,  G.  M.,"  R.  F.  being  his 
master's  name,  and  by  that  means  received  the  amount  of  the  bill. 
The  prisoner  was  found  guilty,  and  the  question  whether  this  was  a 
forgery  Avas  reserved  for  the  opinion  of  the  judges,  but  tlie  prisoner 
dying  in  the  meantime  no  decision  was  given.  But  in  R.  v.  White, 
1  Den.  C  C.  208,  where  the  same  point  arose,  the  judges  held  that  it 
was  no  forgery.  See  now  24  &  25  Vict.  c.  98,  s.  24,  supra,  p.  554. 
If  a  person,  having  the  blank  acceptance  of  another,  be  authorized  to 
write  on  it  a  bill  of  exchange  for  a  limited  amount,  and  he  write 
on  it  a  bill  of  exchange  for  a  larger  amount,  with  intent  to  de- 
fraud either  the  acceptor  or  any  other  person,  it  has  been  held  that  it 

six  dollars,"  held  that  such  act  did  not  amount  to  the  crime  of  forgery.  State  v. 
Monnur,  8  Minn.  212.  Signing  a  promissory  note  in  the  name  of  a  fictitious  firm, 
with  intent  to  defraud  and  falsely  representing  that  the  firm  consists  of  the  writer  and 
another  person,  is  not  forgery.  Commonwealth  j;.  Baldwin,  11  Gray,  197.  A  man  who 
makes  a  false  charge  in  his  own  book  of  account  is  not  guilty  of  forgery.  State  v. 
Young,  40  N.  H.  266.  Whce  a  party  detached  from  a  written  instrument  a  condition 
annexed  thereto,  which  condition  was  made  contemporaneously  with  the  instrument, 
was  a  part  of,  and  which  together  with  such  instrument,  constituted  one  contract, 
and  the  detachment  of  the  condition  changed  the  instrument  from  one  which  was  not 
negotialjie  to  one  which  was ;   held  forgery.     State  v.  Stratton,  27  la.  420. 

Forgery  in  altering  instrument.     State  v.  Kroega,  47  Mo.  552 ;  Flint  v.  Craig,  59 
Barb.  319 ;  State  v.  Wooderd,  20  la.  541 ;  State  v.  Kattleman,  35  Mo.  105.    S. 


FORGEEY.  723 

is  forgery.  E.  v.  Hart,  7  C.  &  P.  652,  32  E.  C.  L.  So  of  a  blank 
cheque ;  R.  v.  Bateman,  1  Cox,  C.  C.  186.  It  is  not  necessary  that 
additional  credit  should  have  been  gained  by  the  forgery,  if  any  per- 
son has  been  thereby  intentionally  defrauded.  R.  v.  Taft,  1  Leach, 
172 ;  2  East,  P.  C.  954  ;  R.  v.  Taylor,  2  East,  P.  C.  960 :  1  Leach, 
214. 

Where  a  customer  of  a  bank  altered  his  own  handwriting  on  a  paid 
cheque  so  as  to  make  it  appear  to  be  forged,  and  upon  returning  it  as 
forged,  got  credit  for  the  amount,  it  was  held  not  to  be  forgery. 
Brittain  v.  Bank  of  London,  3  F.  &  F.  465. 

What  amounts  to  forgery — by  using  a  person's  own  name.  It 
is  essential  to  the  crime  of  forgery  that  the  document  should  contain  a 
false  statement.  But  this  may  be  done  by  a  person  barely  signing 
his  own  name  to  a  document.  '  Thus,  where  a  bill  of  exchange  pay- 
able to  A.  B.  or  order  came  to  the  hands  of  another  A.  B.  who  fraud- 
ulently indorsed  it,  this  was  held  to  be  forgery.  Meed  v.  Young, 
4  T.  R.  28.  The  indorsement  of  the  bill  amounted  in  fact  to  a 
statement  that  the  indorser  was  that  A.  B.  to  whom  the  bill  was 
payable.  If  a  person  uses  his  own  name,  but  attaches  a  false  de- 
scription to  it,  it  will  be  the  same  as  if  he  had  used  a  fictitious 
name.     See  infra} 

What  amounts  to  forgery — by  using  another  person's  or  a  ficti- 
tious name.  Sometimes  the  only  false  statement  in  the  document 
which  is  charged  as  a  forgery  is  the  use  of  a  name  to  which  the  prisoner 
is  not  entitled.  If  the  name  be  that  of  a  known  existing  person,  which 
is  the  commonest  species  of  forgery,  there  is  no  difficulty.  But  it  was 
at  one  time  doubted  whether,  if  the  name  was  a  fictitious  one  and  of 
a  non-existing  person,  it  was  forgery  in  any  case.  But  that  doubt 
has  long  been  settled.^  2  East,  P.  C  957  ;  2  Russ.  Cri.  640,  5th  ed., 
331  ;  R.  V.  Lewis,  Foster,  116.  And  the  same  rule  applies  to  a  signature 
in  the  name  of  a  fictitious  firm.  Per  Bosanquet,  J.,  R.  v.  Rogers,  8  C.  & 
P.  629,  34  E.  C.  L.  If  the  name  be  an  assumed  one,  then  it  will  be 
forgery  to  draw  up  a  document  in  that  name,  if  the  name  were  as- 
sumed for  the  express  purpose  of  giving  an  appearance  of  genuine- 
ness to  the  document  and  carrying  the  fraud  into  effect.  The  prisoner 
was  indicted  for  forging  a  bill  of  exchange,  dated  3rd  of  April,  1812, 
in  the  name  of  Thomas  White,  as  drawer.  It  appeared  that  the  pris- 
oner came  to  Newnham  on  the  21st  March,  1813,  where  he  intro- 
duced himself  under  the  name  of  White,  and  where  he  resided 
under  that  name  until  the  22d  of  May,  officiating  as  curate  under  • 
that  name.  On  the  17th  of  April  he  passed  away  the  bill  in  question. 
*Dallas,  J.,  told  the  jury  that  if  they  thought  the  prisoner  r*K/^7 
went  to  Newnham  in  the  fictitious  character  of  a  clergyman,   ^ 

*  People  V.  Peacock,  6  Cow.  72.    S. 

'  Riley's  Case,  5  Rog.  Rec.  37  ;  Gotobed's  Case,  6  Id.  25 ;  United  States  v.  Turner,  7 
Pet.  132 ;  see  Commonwealth  t).  Boynton,  2  Mass.  77.    S. 


724  rOEGERY. 

with  a  false  name,  for  the  sole  purpose  of  getting  possession  of  the 
curacy,  and  of  the  profits  belonging  to  it,  they  should  acquit  him ; 
but  if  they  were  satisfied  that  he  went  there  intending  fraudulently  to 
raise  money  by  bills  in  a  false  name,  and  that  the  bill  in  question  was 
made  in  prosecution  of  such  intent,  they  should  convict  him.  The 
iury  convicted  him  accordingly,  and  found  that  the  prisoner  had 
formed  the  scheme  of  raising  money  by  false  bills  before  he  went 
to  Newnham,  and  that  he  went  there  meaning  to  commit  such  fraud. 
The  judges,  on  a  case  reserved,  were  of  opinion  that  where  proof  is 
given  of  a  prisoner's  real  name,  and  no  proof  of  any  change  of  name 
until  the  time  of  the  fraud  committed,  it  throws  it  upon  the  prisoner 
to  show  that  he  had  before  assumed  the  name  on  other  occasiwis,  and 
for  different  purposes.  They  were  also  of  opinion  that  where  the 
prisoner  is  proved  to  have  assumed  a  false  name,  for  the  purpose 
of  pecuniary  fraud  connected  with  the  forging,  drawing,  accepting, 
or  indorsing  in  such  assumed  name  is  forgery.  R.  v.  Peacock,  Rus. 
&  Ry.  278.^ 

The  prisoner,  Samuel  Whiley,  was  indicted  for  forging  a  bill  of  ex- 
change, drawn  in  the  name  of  Samuel  3Iilward.     On  the  27th  of  De- 
cemljer,  1804,  the  prisoner  came  to  the  shop  of  the  prosecutor,  at  Bath, 
and  ordered  some  goods,  and,  a  few  days  afterwards,  he  called  and  said 
he  would  give  a  draft  upon  his  banker  in  London,  and  accordingly  he 
gave  the  bill  in  question.     No  such  person  as  Samuel  Milward  kept  an 
account  with  the  London  banker.     The  prisoner  had  been  baptized  and 
married  by  the  name  of  Whiley,  had  gone  by  that  name  in  Bath  in 
the  July  preceding  this  transaction,  and  at  Bristol  the  following  Oc- 
tober, and  at  Bath  again  on  the  4th  of  December.     About  the  20th  of 
that  month  he  had  taken  a  house  in  Worcestershire,  under  the  same 
name  ;  but,  on  the  28th  of  December,  the  day  after  his  first  appli- 
cation to  the  prosecutor,  he  ordered  a  brass  plate  to  be  engraved  with 
the  name  of  "  Milward,"  which  was  fixed  upon  the  door  of  his  house 
on  the  following  day.     The  prosecutor  stated  that  he  took  the  draft  on 
the  credit  of  the  prisoner,  whom  he  did  not  know  ;  that  he  presumed 
the  prisoner's  name  was  that  which  he  had  written,  and  had  no  reason 
to  susj^ect  the  contrary  ;  and  if  the  prisoner  had  come  to  him  under 
the  name  of  Samuel  Whiley,  he  should  have  given  him  equal  credit 
for  the  goods.     In  his  defence,  the  prisoner  stated  that  he  had  been 
christened  by  the  name  of  Samuel  Milward,  and  that  he  had  omitted 
the  name  of  ^Vhiley  for  fear  of  arrest.     The  judge  left  it  to  the  jury 
to  say,  ■Avhether  the  prisoner  had  assumed  the  name  of  "  Milward  "  in 
the  purchase  of  the  goods,  and  given  the  drafts,  with  intent  to  defraud 
the  prosecutor.     The  jury  found  the  prisoner  guilty,  and  the  judges, 
upon  a  reference   to   them,  were   of  opinion,  that  tlie    question  of 
fraud  being  so  left  to  the  jury,  and  found  by  them,  the  conviction 
was  right.     R.  v.  Whiley,  2  Russ.  Cri.  647,  5th  ed.;  Russ.  &  Ry.  90. 
The  prisoner,  John  Francis,  was  indicted  for  forging  an  order  for 
payment  of  money  upon  the  bankers,  Messrs.  Praed  &  Co.,  in  favor 
of  Mrs.   Ward.      On  the  15th  of  August  the  prisoner  had  taken 
1    State  V.  Hayden,  15  N.  H.  355.    S. 


FORGERY.  725 

lodgings  at  Mrs.  W.'s  house,  under  the  name  of  Cooke,  and  conthiued 
there  till  the  9th  of  September,  when  he  gave  her  the  order  in  ques- 
tion, for  money  lent  liim  by  her.  The  order,  whieh  was  signed  "  James 
Cooke,"  being  refused  by  the  bankers,  he  said  he  had  omitted  the 
*word  "junior,"  which  he  added;  but  the  draft  was  again  re-  r:),pr/>o 
fused,  and  the  prisoner  in  the  meantime  left  the  house.  The  •- 
case  was  left  by  the  judge  to  the  jury,  with  a  direction  that  they  should 
consider  whether  the  prisoner  had  assumed  the  name  of  Cooke  Avitli  a 
fraudulent  purpose,  and  they  found  him  guilty.  On  a  case  reserved, 
all  the  judges  who  were  present  held  the  conviction  right,  and  were  of 
opinion  that,  if  the  name  were  assumed  for  the  purpose  of  fraud  and 
avoiding  detection,  it  was  as  much  a  forgery  as  if  the  name  were 
that  of  any  other  person,  though  the  case  would  be  dilFerent  if  the 
party  had  habitually  used,  and  become  known  by,  another  name 
than  his  own.  R.  v.  Francis,  Russ.  &  Ry.  209 ;  2  Russ.  Cri.  648, 
5th  ed. 

So  in  R.  V.  Parkes,  2  Leach,  775  ;  2  East,  P.  C.  963,  where  a  per- 
son of  the  name  of  T.  B.,  dated  a  note  at  Roughton,  Salop,  and  made 
it  payable  at  Messrs.  Thornton  &  Co.'s,  bankers,  London,  and  signed 
it  in  the  name  of  T.  B.,  and  passed  off  the  note  as  a  note  of  his 
brother ;  and  it  was  proved  that  the  prisoner  had  no  brother  of  the 
name  of  T.  B.,  and  that  there  was  no  person  of  that  name  who  re- 
sided at  Roughton,  or  kept  an  account  with  Thornton  &  Co.;  this  was 
held  by  Grove,  J.,  to  be  forgery.  The  case  of  R.  v.  Walker,  tried  be- 
fore Chambers,  J.,  6  Ev.  Stat.  580,  is  sometimes  quoted  as  an  author- 
ity against  this  ;  but  there  the  prisoner  had  been  in  the  habit  of  draw- 
ing bills  in  the  same  fictitious  name  for  some  time,  and  they  had  been 
regularly  paid,  so  that  the  learned  judge  thought  very  properly  that 
there  was  not  sufficient  evidence  to  go  to  the  jury  that  the  name  had 
been  assumed  for  the  express  purpose  of  carrying  out  the  forgery, 
which  is  a  necessary  ingredient  in  this  class  of  cases.  This  appears 
from  the  following  case  : — The  prisoner,  Thomas  Bontien,  was  charged 
with  forging  the  acceptance  of  a  bill  of  exchange.  It  appeared  from 
the  evidence  of  the  prosecutrix,  that  having  a  house  at  Tottenham  to 
let,  in  October,  1811,  the  prisoner  took  it,  and,  to  pay  for  the  furni- 
ture and  fixtures,  wrote  the  bill  in  question,  which  the  prosecutrix 
signed  as  drawer,  and  the  prisoner  accepted  in  the  name  of  Thomas 
Scott.  The  bill  was  dated  12th  of  November,  1810;  the  prisoner 
went  at  the  time  by  the  name  of  Thomas  Scott :  at  various  times  he 
had  gone  by  the  name  Bontien  ;  but  he  called  a  witness,  who  stated 
that  he  first  knew  the  prisoner  at  the  latter  end  of  August,  1810,  and 
knew  him  continually  by  the  name  of  Scott ;  that  he  had  a  nickname 
of  Bont  or  Bontien  at  times.  He  proved  that  he  had  transacted  busi- 
ness with  the  prisoner  in  the  name  of  Scott,  in  the  year  1810  ;  that  he 
never  knew  him  by  any  other  name ;  and  that  his  only  knowledge  of 
his  having  gone  by  other  names  was  from  the  newspapers.  The  pris- 
oner being  convicted,  a  majority  of  the  judges,  upon  a  case  reserved 
(Mr.  Justice  Heath  appearing  to  be  of  a  contrary  opinion),  thought 


726  FORGERY. 

that  it  did  not  sufficiently  appear  npon  the  evidence  that  the  pris- 
oner had  not  gone  by  the  name  of  Scott  before  the  time  of  ac- 
cepting the  bill,  or  that  he  had  assumed  the  name  for  that  purpose, 
and  they  thought  the  conviction  wrong.  11.  v.  Bontien.  Russ.  & 
Ry.  260. 

The  result  of  the  above  cases  is  that  where  the  fictitious  name  is 
assumed  for  the  purposes  of  the  fraud,  the  offence  of  forgery  may  be 
proved,  but  it  is  otherwise  where  the  credit  is  given  solely  to  the 
person  without  any  regard  to  the  name,  as  in  the  case  of  R.  v.  Martin, 

*5691    *^  ^*  ^'  ^'  ^^ '  "^^  ^'  '^•'  ^'  ^'  ^^'  ^^^^^^'^  *^^^  prisoner  Rob- 
J   ert  Martin,  in  payment  for  a  pony  and  cart  purchased  by  him 

from  the  prosecutor,  drew  a  cheque  in  the  name  of  William  Martin, 
in  the  presence  of  the  prosecutor,  upon  a  bank  at  which  he,  the  pris- 
oner, had  no  account,  and  gave  it  to  the  prosecutor  as  his  own  cheque 
drawn  in  his  own  name.  The  prisoner  was  an  old  acquaintance  of  the 
prosecutor,  and  the  prosecutor  received  the  cheque  on  the  credit  of  the 
prisoner  himself,  not  observing  the  name  in  which  it  was  signed.  It 
was  held,  following  R.  v.  Dunn,  1  Lea.  C  C.  59,  that  the  prisoner 
was  not  guilty  of  the  offence  of  forgery. 

What  amounts  to  forgery — not  necessary  that  document  should 
be  perfect.  It  is  not  necessary  that  the  document  which  is  forged 
should  be  perfectly  valid  for  the  purpose  for  which  it  was  intended. 
Thus,  where  a  man  was  indicted  at  common  laAV  for  forging  a  surren- 
der of  the  lands  of  J.  S  ,  and  it  did  not  appear  in  the  indictment  that 
J.  S.  had  any  lands;  upon  motion  in  arrest  of  judgment  it  was  held 
good,  it  not  being  necessary  to  show  any  actual  prejudice.  R.  v.  Goate, 
1  Ld.  Raym.  737.  So  the  making  of  a  false  instrument  is  forgery, 
though  it  may  be  directed  by  statute  that  such  instrument  shall  be  in 
a  certain  form,  which,  in  the  instrument  in  question,  may  not  have 
been  complied  with,  the  statute  not  making  the  informal  instrument 
absolutely  void,  but  it  being  available  for  some  purposes.  This  ques- 
tion arose  upon  a  prosecution  for  forging  a  power  of  attorney  for  the 
receipt  of  prize-money,  which,  by  the  repealed  statute  26  Geo.  3,  c.  63, 
was  required  to  have  certain  forms.  The  power  had  not,  in  one  par- 
ticular, followed  the  directions  of  the  act.  The  prisoner  being  con- 
victed, a  case  was  reserved  for  the  opinion  of  the  judges,  when  all 
(except  Graham,  B.,  and  Bayley,  J.)  were  of  opinion  that  the  letter  of 
attorney  was  not  a  void  instrument,  but  that  it  might  be  the  subject  of 
a  criminal  prosecution  ;  that  a  payment  made  under  it,  to  the  use  of 
the  petty  officer,  would  be  good  as  against  him,  and  that  the  attorney 
under  it  might  bring  an  action  for  the  prize-money,  or  execute  a  re- 
lease. Graham,  B.,  and  Bayley,  J.,  thought  that  it  was  a  void  instru- 
ment ;  that  no  person,  without  a  breach  of  duty,  could  make  the  payment 
of  the  prize-money  under  it;  and  consequently  that  no  person  could 
be  guilty  of  a  capital  crime  by  forging  it.  R.  v.  Lyon,  Russ.  &  Ry. 
255.  Upon  the  same  principle,  a  man  may  be  convicted  of  forging 
an  unstamped  instrument,  though  such  instrument  can  have  no  opera- 


FORGERY.  727 

tion  in  law.^  But  although  at  common  law  forgery  of  an  imperfect 
document  may  be  committed,  yet  it  would  be  otherwise  where  the  offence 
charged  is  for  forgery  of  any  particular  instrument,  the  forgery  of 
which  is  made  felony  by  statute ;  see  R.  v.  Harper,  7  Q.  B.  D.  78 ; 
50  L.  J.,  M.  C.  90,  and  cases,  post,  p.  574. 

Upon  an  indictment  for  vending  counterfeit  stamps  (contrary  to  the 
44  Geo.  3,  c.  98),  it  appeared  that  the  stamps  in  all  respects  resembled 
a  genuine  stamp,  excepting  only  the  centre  part,  which  in  a  genuine 
stamp  specifies  the  duty,  but  for  which,  in  the  forged  stamp,  the  words 
"Jones,  Bristol,"  were  substituted.  The  fabrication  was  likely  to  de- 
ceive the  eye  of  a  common  observer.  The  judges,  on  a  case  reserved, 
held  that  the  prisoner  was  rightly  convicted  of  forgery.  E,.  v.  Colli- 
cott,  2  Lea.  C.  C.  1048 ;  4  Taunt.  300 ;  Russ.  &  Ry.  212. 

See,  as  to  county  court  process,  post^  p.  584. 

Proof  of  forging  transfer  of  stock.  In  the  following  case,  which 
was  *an  indictment  founded  on  the  former  statute,  33  Geo.  3,  r*K7rv 
c.  30  (now  repealed),  several  points  were  ruled  with  regard  to  •- 
indictments  for  forging  a  transfer  of  stock.  Three  objections  were 
taken  on  behalf  of  the  prisoner :  1st,  that  there  did  not  appear  in 
evidence  to  be  any  acceptance  of  the  transfer  by  the  party  who  was 
alleged  to  be  possessed  of  the  stock,  till  which  time  it  was  said  the 
transfer  was  incomplete ;  2ndly,  that  till  the  stock  was  accepted,  no 
transfer  at  all  could  be  made  ;  3rdly,  that  the  instrument  was  not  wit- 
nessed, which,  according  to  the  printed  form  used  by  the  bank,  should 
have  been  done.  The  prisoner  having  been  convicted,  the  opinion  of 
the  judges  on  the  case  was  delivered  by  Buller,  J.  He  observed,  that, 
as  to  the  two  first  objections,  two  answers  had  been  given  :  1st,  that 
the  stock  vested  by  the  mere  act  of  transferring  it  into  the  name  of  the 
party,  and  that  if  he  had  died  before  he  accepted  it,  it  would  have 
gone  to  his  executors  as  part  of  his  personal  estate";  2ndly,  that  the 
nature  of  the  offence  would  not  have  been  altered,  if  the  party  had  not 

1  Pennsylvania  v.  Misner,  Add.  44;  Butler  v.  Commonwealth,  12  S.  &  R.  237 ; 
People  ('.  Sluill,  9  Cow.  778 ;  People  v.  Fitch,  1  Wend.  198.  A  written  instrument  to 
be  tlie  subject  of  indictment  for  forgery  must  be  valid,  if  genuine,  for  the  purpose  in- 
tended. If  void  or  invalid  on  its  face,  and  it  cannot  be  made  good  by  averment,  the 
crime  of  forgery  cannot  be  predicated  of  it.  People  v.  Plarrison,  8  Barb.  560 ;  Harri- 
son V.  People,  9  Barb.  664.  It  makes  no  difference  that  the  name  forged  is  not  rightly 
spelled.  Case  of  Grant  et  al.,  3  Rog.  Rec.  142.  Nor  need  the  handwriting'  resemble 
his  whose  name  is  forged.  Dobb's  Case,  6  Id.  61.  An  indorsement  upon  a  draft  which 
is  unstamped  may  be  a  forgery.  People  v.  Frank,  25  Cal.  507.  Instrument  need  not 
be  stamped.  Cross  v.  People,  47  111.  152  ;  State  v.  Hajmes,  6  Cold.  550.  Contra,  John 
V.  State,  23  Wis.  504.  It  is  sufficient  to  establish  the  forgery  of  a  check  and  tlie  sig- 
nature thereto,  to  show  a  similarity  between  the  spurious  check  and  the  genuine  one, 
such  as  to  create  a  possibility  of  a  fraud.  State  v.  Dennett,  19  La.  395  ;  Reed  v. 
State,  28  Ind.  396.  It  is  an  indispensable  element  in  the  crime  of  forgerv,  that  the 
forged  paper  must  be  such,  that  if  genuine  it  may  injure  another.  State  r.  Briggs,  34 
Vt.  501.  K.  without  authority  drew  an  order  upon  A.  and  signed  K.'s  name,  with 
the  fraudulent  purpose  of  obtaining  goods  on  K.'s  credit ;  held  that  no  acceptance  of 
the  order  was  necessary  to  constitute  forgery.  Hale  v.  State,  1  Cold.  167.  An  indict- 
ment for  forgery  of  notes  need  not  allege  that  the  genuine  notes  are  current.  Poller 
i;.  State,  17  Md.  415.  _S. 

A  prima  fane  case  is  made  out  when  the  indorsement  upon  a  bank  check  is  shown 
not  to  be  in  the  payee's  handwriting.     Schroeder  v.  Harvey,  75  111.  638. 


728  FORGERY. 

had  any  stock  standing  in  his  name ;  for  the  transfer  forged  by  the 
prisoner  was  complete  on  the  face  of  it,  and  imported  that  there  was 
such  a  description  of  stock  capable  of  being  transferred.  Neither  the 
forgery  nor  the  fraud  would  have  been  less  complete,  if  the  party  had 
really  had  no  stock.  As  to  the  third  objection,  the  judges  all  thought  that 
the  entry  and  signatures,  as  stated  in  the  indictment,  were  a  complete 
transfer,  without  the  attestation  of  witnesses,  which  was  no  part  of  the 
instrument,  but  only  required  by  the  bank  for  their  own  protection. 
R.  V.  Gade,  2  East,  P.  C.  874 ;  2  Leach,  732. 

Proof  of  personating  owner  of  stock.  The  following  case  was 
decided  upon  the  former  statute,  31  Geo,  2,  c.  22  :  The  prisoner  was 
indicted  for  personating  one  Isaac  Hart,  the  proprietor  of  certain 
stock,  and  thereby  endeavoring  to  receive  from  the  bank  of  England 
the  sum  of,  etc.  It  appeared  that  the  prisoner,  representing  himself 
to  be  Isaac  Hart,  received  from  the  dividend-payer,  at  the  bank,  a 
dividend  warrant  for  the  sum  due,  on  receiving  which,  instead  of  car- 
rying it  to  the  pay-office,  he  walked  another  way,  and  made  no  attempt 
to  receive  the  money.  It  was  objected  for  the  prisoner,  that  there  was 
no  proof  of  his  having  endeavored  to  receive  the  money,  but  being 
convicted,  the  judges  held  the  conviction  right.  They  said,  that  the 
manner  in  which  he  applied  for  and  received  the  warrant  was  a  per- 
sonating of  the  true  proprietor,  and  that  he  thereby  endeavored  to  re- 
ceive the  money,  within  the  intent  and  meaning  of  the  act  of  parlia- 
ment.    R.  V.  Parr,  1  Leach,  434;  2  East,  P.  C.  1005. 

Proof  of  forging  a  bank-note.  It  has  been  already  said,  supra, 
p.  5G9,  that  it  is  not  essential  that  the  forged  instrument  should,  in 
all  respects,  be  perfect.  Where  the  forgery,  says  Mr.  East,  consists 
in  counterfeiting  any  other  known  instrument,  it  is  not  necessary 
that  the  resemblance  should  be  an  exact  one :  if  it  be  so  like  as  to  be 
calculated  to  deceive,  when  ordinary  and  usual  observation  is  given, 
it  seems  sufficient.  The  same  rule  holds,  in  cases  of  counterfeiting 
the  seals,  and  coining.  2  East,  P.  C.  858.  Thus  where  the  prisoner 
was  indicted  for  forging  a  bank-note,  and  a  person  from  the  bank 
stated  that  he  should  not  have  been  imposed  upon  by  the  counterfeit, 
the  difference  between  it  and  the  true  note  being  to  him  so  apparent ; 
yet,  it  appearing  that  others  had  been  deceived,  though  the  counter- 
feiting was  ill  executed,  Le  Blanc,  J.,  held,  that  this  was  a  forgery. 
j^p.„-,-|  *R.  V.  Hoost,  2  East,  P.  C.  950.  The  prisoner  was  indicted  for 
-I  forging  a  bank  of  England  note.  The  instrument,  though  it 
much  resembled  a  real  bank-note,  was  not  made  upon  pajjer  bearing 
the  water-mark  of  the  bank ;  the  number  also  was  not  filled  up,  and 
the  word  "  })ounds  "  was  omitted  after  the  word  "  fifty  ;"  but  in  the 
margin  were  the  figures  50^.  It  was  contended,  that  on  account  of 
these  defects,  this  could  not  be  held  a  forgery  of  a  bank-note ;  but  the 
judges  held  the  prisoner  rightly  convicted  ;  for,  first,  in  forgery,  there 
need  not  be  an  exact  resemblance — it  is  sufficient  that  the  instrument 
is  primd  facie  fitted  to  pass  for  a  true  one ;  secondly,  the  majority  in- 


FOEGERY.  729 

cHued  to  think  that  the  omission  of  "  pounds  "  in  the  body  of  tlie  note, 
had  nothing  else  appeared,  would  not  have  exculpated  the  prisoner ; 
but  it  was  matter  to  be  left  to  the  jury,  whether  the  note  purported  to 
be  for  50/.,  or  any  other  sum  ;  but  all  agreed  that  the  50/.  in  the  mar- 
gin removed  all  doubt.  R.  v.  Elliott,  2  East,  P.  C.  951  ;  1  Leach,  175; 
2  New  Rep.  93  (n).  See  also  R.  v.  M'Connell,  1  C.  &  K.  371  ;  2 
Moo.  C.  C.  298. 

The  jjrisoner  was  indicted  for  uttering  a  forged  note  of  a  private 
bank.  It  appeared,  that  he  had  altered  a  note  of  the  Bedford  Bank, 
from  one  to  forty  pounds,  but  had  cut  off  the  signature  of  the  party 
who  had  signed  it,  so  that  the  words  for  "  Barnard,  Barnard  and 
Green,"  only  were  left.  The  prisoner  being  convicted,  the  judges 
were  clearly  of  opinion  that  the  conviction  was  wrong.  R.  v.  Pate- 
man,  Russ.  &  Ry.  455. 

The  prisoner  was  indicted  for  having  in  his  custody  a  certain 
forged  paper  Avriting,  purporting  to  be  a  bank-note,  in  the  following 
form : — 

I  promise  to  pay  J.  W.,  Esq.,  or  bearer,  £10. 
London,  March  4,  1776. 

For  Self  and  Company  of 
£Ten  my  Bank  of  England. 

Entered.     John  Jones. 

A  special  verdict  was  found,  and  the  question  argued  before  the  court 
was,  whether  this  paper  writing  purported  to  be  a  bank-note.  The 
court  were  of  opinion,  that  the  representation  which  the  prisoner  had 
made  that  it  was  a  good  note,  could  not  alter  the  purport  of  it,  which 
is  what  appears  on  the  face  of  the  instrument  itself;  for  although 
such  false  representations  might  make  the  party  guilty  of  a  fraud  or 
cheat,  they  could  not  make  him  guilty  of  felony.  R.  v.  Jones,  1 
Leach,  204  ;  2  East,  P.  C.  883 ;  see  4  Taunt.  303. 

The  prisoner  was  indicted  for  putting  off  a  forged  note.  The  in- 
strument was  as  follows  : — 

No.  6414.  Blackburn  Bank.  30  shillings. 

I  promise  to  take  this  as  thirty  shillings,  on  demand,  in  part  for  a 
two  pound  note,  value  received. 

Entered.     J.  C.  Blackburn,  Sept.  18,  1821. 

No.  6414. 
Thirty  shillings.  For  Cuncliflfe,  Brooks,  and  Co. 

R.  Cuncliffe. 

The  prisoner  was  convicted,  but  it  being  doubted  by  the  judge 
whether  the  instrument  had  any  validity,  a  case  was  reserved,  and 
the  judges  held  that  the  judgment  ought  to  be  arrested.  It  has  been 
observed  of  this  instrument,  that  it  was  not  payable  to  the  bearer  on 
*demand  ;  that  it  was  not  payable  in  money ;  that  the  maker  pcyo 
only  promised  to  take  it  in  payment ;  and  that  the  requisitions  L 


730  FOEGEEY. 

of  the  statute,  17  Geo.  3,  c.  30  (now  repealed),  were  not  complied  with. 
R.  V.  Burke,  Russ.  &  Ry.  496. 

Proof  of  engraving  part  of  a  note.  In  R.  v.  Keith,  1  Dears.  C.  C. 
E..  486;  24  L.  J.,  M.  C.  110,  the  prisoner  was  convicted  under  this 
section  for  engraving  upon  a  plate  part  of  a  promissory  note  of  a  bank- 
ing company.  Being  possessed  of  a  promissory  note  of  the  British 
Linen  Banking  Company,  he  had  cut  out  the  centre  of  the  note  on 
which  the  whole  of  the  promissory  note  was  written,  and  had  pro- 
cured to  be  engraved  upon  a  plate  part  of  the  ornamental  border  of 
the  note,  consisting  of  the  royal  arms.  The  question  reserved  for 
the  consideration  of  the  Court  of  Criminal  Appeal  was,  whether  this 
amounted  to  an  engraving  upon  a  plate  "  part  of  a  bill  of  exchange 
or  promissory  note,  purporting  to  be  part  of  the  bill  or  note,"  within 
the  meaning  of  this  section.  The  court  held  that  it  did.  Parke,  B., 
in  his  judgment  said,  "  To  see  whether  an  engraving  purports  to  be 
part  of  a  note  you  must  compare  it  with  the  original  note.  If  the 
forged  engraving  is  clearly  intended  to  imitate  any  part  of  a  note, 
whether  that  part  be  the  obligatory  part  of  the  note  or  not,  it  is,  I 
think,  an  offence  within  the  statute.  There  must  be  such  a  portion 
engraved,  that  you  can  say  clearly  on  comparison  that  it  is  intended 
to  imitate  part  or  to  purport  to  be  part  of  a  note.  If  a  single  dot  or 
line  only  were  engraved,  there  would  not  be  enough  to  induce  one  to 
say,  that  the  engraving  puq^orted  to  be  part  of  a  note.  But  in  the 
present  case  the  royal  arms  of  Scotland  in  the  position  in  which  they 
are  found  and  tlie  Britannia  in  the  margin,  appear  on  comparison 
without  any  doubt  to  purport  to  be  part  of  the  ornaments  of  a  real 
note." 

The  24  &  25  Vict.  c.  98,  s.  16,  applies  to  the  engraving  in  England 
of  the  plates  of  notes  of  Scotch  banks,  notwithstanding  the  section 
excepting  Scotland  from  the  operation  of  the  statute.  R.  v.  Bracken- 
bridge,  L.  R.  1  C.  C.  R.  133  ;  37  L.  J.,  M.  C.  86. 

Making  a  note,  etc.  The  taking  of  a  positive  impression  on  glass 
by  photography  is  a  making  within  the  meaning  of  the  section, 
although  such  impression  is  evanescent,  and  cannot  be  printed  or 
engraved  from  until  it  has  been  converted  into  a  negative.  R.  v.  Rin- 
aldi,  L.  &  C.  330 ;  30  L.  J.,  M.  C.  28. 

Proof  of  forging  deeds.  On  an  indictment  against  accessories  be- 
fore the  fact  to  the  forging  of  an  administration  lx)nd,  on  administra- 
tion granted  for  the  effects  of  J.  C,  it  was  objected  that  the  22  &  23 
Car.  2,  c.  10,  requiring  the  bond  to  be  given  by  the  party  by  whom  ad" 
ministration  was  granted,  and  not  by  the  party  that  was  entitled  to  ad- 
ministration, the  bond  could  not  be  treated  as  a  forgery,  but  was  a 
good  bond  within  the  statute,  having  been  given  by  the  party  to  whom, 
in  fact,  administration  was  granted.  The  objection  was  overruled. 
R.  V.  Barber,  1  C.  &  K.  434,  47  E.  C.  L. 

The  forging  of  a  power  of  attorney  to  receive  a  seaman's  wages, 


FORGERY.  731 

was  held  to  be  the  forgery  of  a  deed  within  the  repealed  section  of 
the  statute,  2  Geo.  2,  c.  25.  R.  v.  Lewis,  2  East,  P.  C.  957.  So  a 
power  of  attorney  for  the  purpose  of  receiving  prize-money.  E..  v. 
Lyon,  Russ.  &  Ry.  255,  ante,  p.  569.  In  the  same  manner,  a  power  of 
*attorney  to  transfer  government  stock  ;  R.  v.  Fauntlerov,  1  r^-^o 
Moo.  C.  C.  52;  2  Bingii.  413;  and  an  indenture  of  appren-  ^'^''^ 
ticeship  ;  R.  v.  Jones,  2  East,  P.  C.  991  ;  1  Ijeach,  366.  And  though 
the  instrument  in  question  may  not  comply  with  the  directory  provis- 
ions of  a  statute,  it  may  still  be  described  as  a  deed,  R.  v.  Lyon,  Rnss. 
&  Ry.  255,  if  it  has  some  apparent  validity.  See  supra,  p.  569.  But 
a  letter  of  orders  under  the  seal  of  a  bishop  is  not  a  deed  within  s.  20 
of  24  &  25  Vict.  c.  98,  and  the  conviction  of  the  prisoner,  who  had 
been  indicted  under  that  section  was  quashed.  R.  v.  Morton,  L.  R., 
2  C.  C.  22  ;  42  L.  J.,  M.  C.  58. 

Proof  of  forging  wills.  The  prisoner  was  indicted  for  forging  the 
will  of  Peter  Perry.  The  will  began,  "  I,  Peter  Perry,"  and  was 
signed,  John  X  Perry,  his  mark.  It  was  objected  that  tliis  was  not 
a  forgery  of  the  will  of  Peter  Perry  as  laid  in  the  indictment,  but  the 
prisoner  was  convicted,  and  afterwards  executed.  R.  v.  Fitzgerald,  2 
East,  P.  C.  953. 

The  prisoner  was  convicted  of  forging  a  will  of  land  of  one  T.  S., 
deceased,  attested  by  two  witnesses  only.  It  did  not  appear  in  evi- 
dence what  estate  the  supposed  testator  had  in  the  land  demised,  or  of 
what  nature  it  was  ;  and  it  was  urged  that  it  must  be  presumed  to 
have  been  freehold,  and  that  the  will,  therefore,  was  void  by  the  Stat- 
ute of  Frauds  for  want  of  attestation  by  three  witnesses.  The  judges 
held  the  conviction  wrong  ;  for,  as  it  was  not  shown  to  be  a  chattel 
interest,  it  was  to  be  presumed  to  be  freehold,  and  the  will,  therefore, 
void.     R.  V.  Wall,  2  East,  P.  C.  953. 

It  was  held  that,  at  common  law,  it  made  no  difference  that  the  party 
whose  will  is  forged  is  living.  R.  v.  Coogan,  1  Lea.  449  ;  2  East,  P. 
C  948.  Nor  does  it  make  any  difference  that  the  will  is  made  in  the 
name  of  a  non-existing  person.  R.  v.  Avery,  8  C.  &  P.  596,  34  E. 
C  L.,  per  Patteson,  J. 

A  probate,  unrevoked,  is  not  conclusive  proof  of  the  validity  of  a 
will.     R.  V.  Buttery,  Russ.  &  Ry.  342. 

Proof  of  forging  bills  of  exchange.  It  has  already  been  said 
(ante,  p.  569)  that  it  is  not  necessary  that  the  instrument  should  be 
perfect ;  it  is  sufficient  if  it  bear  such  a  resemblance  to  the  document 
it  is  intended  to  represent  as  is  calculated  to  deceive.  The  prisoner 
was  indicted  for  forging,  and  also  for  uttering,  a  forged  bill  of  ex- 
change. He  discounted  the  bill  and  indorsed  the  name  upon  it ;  but 
there  was  no  indorsement  of  the  name  of  the  drawers,  to  whose  order 
it  was  payable.  It  was  urged  for  the  prisoner,  that  as  there  was  no 
indorsement  by  the  payees,  nor  anything  purporting  to  be  such  an  in- 
dorsement, the  instrument  could  not  pass  as  a  bill  of  exchange,  and 
could  not  therefore,  effect  a  fi*aud.     The  prisoner  was  convicted,  and 


732  FORGERY. 

all  the  judges,  who  were  present  on  the  argument  on  a  case  reserved, 
held  the  conviction  proper.  Lawrence,  J.,  at  first  doubted,  but  his 
doubts  were  removed  by  the  argument  that,  had  it  been  the  true  and 
genuine  bill  it  purported  to  be,  the  holder  for  a  valuable  consideration 
from  the  payees  might  have  compelled  the  latter  to  indorse  it.  Mr. 
Justice  Bayley  was  not  present  at  the  meeting,  but  thought  the  con- 
viction wrong  ;  he  was  of  opinion  that,  for  want  of  an  indorsement, 
the  bill  was  not  negotiable,  and  therefore,  if  genuine,  not  of  value  to 
the  holder  of  it.     R.  v.  Wicks,  Russ.  &  Ry.  149. 

An  instrument  drawn  by  A.  upon  B.,  requiring  him  to  pay  to  the 
*c;7/iT   *order  of  C  a  certain  sum  at  a  certain  time  "without  accept- 
-■   ance"    is  a  bill  of  exchange.     Per  Patteson,  J.,  R.  v.  Ivinnear, 
2Moo.  &  R.  117. 

So  where  the  prisoner  was  indicted  for  forging  the  acceptance  of  a 
bill  of  exchange  for  3/.  Ss.,  and  it  appeared  that  the  requisitions  of 
the  statutes,  15  Geo.  3,  c.  5,  and  17  Geo.  2,  c.  30,  had  not  been  com- 
plied with,  the  bill  not  specifying  the  place  of  abode  of  the  payee,  nor 
being  attested  by  any  subscribing  witness,  the  prisoner  having  been 
convicted,  the  judges,  on  a  reference  to  them,  were  unanimously  of 
opinion  that  the  instrument,  if  real,  would  not  have  been  valid  or  ne- 
gotiable, and  that  therefore  the  conviction  was  wrong.  R.  v.  Moffatt, 
1  Leach,  431  ;  2  East,  P.  C.  954.  This  case  was  distinguished,  on 
the  conference  of  the  judges  from  R.  v.  Hawkeswood,  infra,  where  the 
holder  of  the  bill  had  a  right  to  get  it  stamped  (see  R.  v.  ^Morton,  post, 
p.  575) ;  and  the  stamp  act  only  says,  it  shall  not  be  used  in  evidence 
till  stamped.  2  East,  P.  C.  954.  Where  the  prisoner  forged  an  ac- 
ceptance to  a  document  which  was  a  bill  of  exchange  except  for  Mant 
of  the  drawer's  signature.  Chambers,  Common  Serjeant,  ruled  that  he 
could  not  be  convicted  of  forging  an  accejitance  to  a  bill  of  exchange. 
R.  V.  Mopsey,  11  Cox,  C.  C.  143 ;  R.  v.  Harper,  7  Q.  B.  D.  78 ;  50 
L.  J.,  M.  C.  90. 

A  document  in  the  ordinary  form  of  a  bill  of  exchange,  but  requir- 
ing the  drawer  to  pay  his  own  order,  and  purporting  to  be  indorsed  by 
the  drawer,  and  accepted  by  the  drawee,  cannot,  in  an  indictment  for 
forging  and  uttering  be  treated  as  a  bill  of  exchange.  Per  Erskine,  J., 
R.  V.  Bartlett,  2  Moo.  &  R.  362.  The  prisoner  Avas  indicted  for  forg- 
ing an  order  for  the  payment  of  money  upon  the  treasurer  of  the 
navy.  There  was  no  payee  named  in  the  order  ;  and  upon  this  ground, 
and  also  upon  the  ground  that  the  order  was  directed  to  the  treasurer 
and  not  to  the  commissioners  of  the  navy  (the  latter  being  the  legal 
paymasters),  it  was  objected  that  the  prisoner  was  wrongly  convicted. 
Eleven  of  the  judges  having  met,  agreed  that  the  direction  to  the 
treasurer  instead  of  the  commissioners  would  not  prevent  its  being 
considered  an  order  for  the  payment  of  money  ;  but  the  majority  of 
them  (Mansfield,  C.  J.,  diss.)  held  that  it  was  an  order  for  the  }iay- 
ment  of  money,  because  of  the  want  of  a  jiayee,  and  that  the  convic- 
tion was  wrong.  R.  v.  Richard,  Russ.  &  Ry.  193.  In  a  case  Avhich 
occurred  soon  after  the  preceding,  the  judges  ruled  the  same  way,  with 
regard  to  a  bill  of  exchange,  in  which  the  name  of  the  payee  was  left 


FORGERY.  733 

blank.  R.  V.  Randall,  Riiss.  &  Hy.  195.  But  it  has  been  holden,  on 
a  case  reserved,  that  an  instrument  in  the  form  of  a  bill  of  exchange 
with  an  acceptance  on  it  is  a  bill  of  exchange,  although  there  be  no 
person  named  as  drawee  in  the  bill.  R.  v.  Hawkes,  2  Moo.  C.  C  60, 
diss.  Parke,  B.,  Patteson,  J.,  and  Coleridge,  J.,  and  it  seems  doubtful 
whether  an  instrument  can  be  a  bill  of  excliange  unless  it  have  both  a 
drawer  and  drawee.     Peto  v.  Reynolds,  9  Exch.  410, 

Upon  the  same  principle,  a  man  may  be  convicted  of  forging  an 
unstamped  instrument,  though  such  instrument  can  have  no  operation 
in  law.  The  prisoner  was  indicted  for  forging  a  bill  of  exchange. 
It  was  objected  for  him,  that  the  bill  was  unstamped,  and  the  23 
Geo.  3,  c.  58,  s.  11  (repealed),  was  referred  to,  which  enacts,  that  no 
bill  of  exchange  shall  be  pleaded,  or  given  in  evidence  in  any  court, 
or  admitted  in  any  court  to  be  good  or  available  at  law  or  in  equity, 
unless  stamped.  This  prisoner  was  convicted,  and  the  judges  deter- 
mined that  the  conviction  was  right ;  for  the  words  of  the  act  cited 
*mean  only,  that  the  bill  shall  not  be  made  use  of  to  recover  r^r^e 
the  debt  ;  and  besides,  the  holder  of  a  bill  was  authorized  to  ^ 
get  it  stamped  after  it  was  made.  R.  v.  Hawkeswood,  1  Leach,  257. 
Soon  after  this  decision,  the  point  arose  again,  and  on  the  authority  of 
R.  V.  Hawkeswood,  the  prisoner  was  convicted  and  executed.  R.  v. 
Lee,  Id.  258  (n).  Tlie  question,  a  few  years  afterwards,  again  under- 
went considerable  discussion,  and  was  decided  the  same  way,  though  in 
the  meantime,  the  law,  with  regard  to  the  procuring  of  bills  and  notes  to 
be  subsequently  stamped,  upon  which,  in  R.  v.  Hawkeswood,  the  judges 
appear  in  some  degree  to  have  relied,  had  been  repealed.  The  pris- 
oner was  indicted  for  knowingly  uttering  a  forged  promissory  note. 
Being  convicted,  the  case  was  argued  before  the  judges,  and  for  the 
prisoner  it  was  urged  that  the  stat.  31  Geo.  3,  c.  25,  s.  19  (repealed), 
which  prohibits  the  stamp  from  being  afterwards  affixed,  distin- 
guished the  case  from  R.  v.  Hawkeswood.  Though  two  or  three 
of  the  judges  doubted  at  first  the  propriety  of  the  latter  case,  if  the 
matter  were  res  Integra,  yet  they  all  agreed,  that  being  an  authority 
in  point,  they  must  be  governed  by  it ;  and  they  held,  that  the  stat. 
31  Geo.  3  made  no  difference  in  the  question.  Most  of  them  main- 
tained the  principle  of  R.  v.  Hawkeswood  to  be  well  founded,  for  the 
acts  of  parliament  referred  to  were  mere  revenue  laws,  meant  to 
make  no  alteration  in  the  crime  of  forgery,  but  only  to  provide  that 
the  instrument  should  not  be  available  for  recovering  upon  it  in  a 
court  of  justice,  though  it  might  be  evidence  for  a  collateral  purpose  ; 
that  it  was  not  necessary  to  constitute  forgery  that  the  instrument 
should  be  available  ;  that  the  stamp  itself  might  be  forged,  and  it 
would  be  a  strange  defence  to  admit  in  a  court  of  justice,  that  because 
the  man  had  forged  the  stamp,  he  ought  to  be  excused  for  having 
forged  the  note  itself,  which  would  be  setting  up  one  fraud  in  order  to 
protect  him  from  the  punishment  due  to  another.  R.  v.  Morton,  2 
East,  P.  C.  955 ;  1  Lea.  258  (n).  The  doctrine  was  again  confirmed 
in  R.  V.  Teague,  2  East,  P.  C.  979,  when  the  judges  said  that  it  had 
been  decided   that  the   stamp  acts  had  no  relation  to  the  crime  of 


734  FORGERY. 

foro-eiy  ;  but  that,  supposing  the  instrument  forged  to  be  such,  on  the 
face  of  it,  as  would  be  valid  provideil  it  had  a  proper  stamp,  the 
offence  was  complete. 

If  the  prisoner  write  another  person's  name  across  a  blank  stamp, 
on  which,  after  he  is  gone,  a  third  person  who  is  in  league  with  him 
writes  a  bill  of  exchange,  it  was  said  that  this  was  not  a  forgery  of  the 
acceptance  of  a  bill  of  exchange  by  the  prisoner.  R.  v.  Cooke,  8  C.  & 
P.  582,  34  E.  C.  L.  So  where  the  prisoner,  who  was  a  partner  in  a 
firm,  was  indicted  for  forging  an  acceptance  of  a  bill  of  exchange,  and 
it  appeared  that  another  party,  by  the  direction  of  the  prisoner,  had 
written  the  name  of  a  customer  across  a  blank  stamp,  on  which 
the  prisoner  some  time  subsequently  drew  a  bill  of  exchange  in  the 
name  of  the  firm ;  Parke,  B.,  held  that  this  was  not  a  forgery  of  an 
acceptance  of  a  bill  of  exchange  within  the  statute,  which  does  not 
make  it  forgery  merely  to  counterfeit  an  acceptance,  but  an  accept- 
ance of  a  bill  of  exchange.  R.  v.  Butterwick,  2  Moo.  &  R.  196. 
But  both  these  would  probably  be  considered  forgeries  at  common 
law. 

In  order  to  bring  the  case  within  the  statute,  the  instmment  in 
question,  which  is  laid  to  be  a  bill  of  exchange  or  promissory  note, 
must  purport  on  the  face  of  it  to  be  legally  such.  Where  the  instru- 
ment was  in  the  following  form  : — "  I  promise  to  pay  the  bearer  one 
guinea  on  demand,  here  in  cash,  or  a  Bank  of  England  note  :"  the 
*KT'\  *j"tlges  were  of  opinion,  that  this  was  not  a  note  for  the  pay- 
J  raent  of  money  within  the  repealed  stat.  2  Geo.  2,  c.  25,  the 
guinea  being  to  be  paid  in  cash  or  a  Bank  of  England  note,  at  the  op- 
tion of  the  payer.  R.  v.  Wilcock.  2  Russ.  Cri.  826,  5th  ed.  But  it 
is  not  necessary,  in  order  to  constitute  a  promissory  note  for  the  pay- 
ment of  money  within  the  statute,  that  it  should  be  negotiable.  The 
prisoner  was  convicted  under  the  2  Geo.  2,  c.  25,  of  forging  a  promis- 
sory note,  in  the  following  form  : — 

"On  demand,  we  promise  to  pay  to  Mesdames  S.W.  and  S.  D.,  stew- 
ardesses, for  the  time  being,  of  the  Provident  Daughters'  Society,  held 
at  Mr.  Pope's,  or  their  successors  in  office,  64/.,  value  received. 

"  For  C.  F.  &  Co., 
"J.  F." 
It  was  moved  in  arrest  of  judgment,  that  this  was  no  promissory  note; 
but  the  judges  were  of  a  different  opinion,  saying,  that  it  was  not  ne- 
cessary that  it  should  be  negotiable,  and  that  it  was  immaterial  whe- 
ther the  payees  were  legally  stewardesses,  and  that  their  successors 
could  not  take  the  note.  R.  v.  Box,  2  Russ.  Cri.  829,  5th  ed.;  Russ. 
&  Ry.  300  ;  6  Taunt.  325. 

Even  before  the  11  Geo.  4  &  1  Will.  4,  c.  66,  s.  4  (now  repealed),  it 
was  held,  that  the  instrument  was  not  the  less  a  bill  of  exchange  if, 
containing  the  requisites  which  constitute  a  bill  of  exchange  in  law,  it 
professed  also  to  be  drawn  in  pursuance  of  some  particular  statute, 
with  the  requisitions  of  which  it  failed  to  comply.  Thus  a  bill 
drawn  upon  commissioners  of  the  navy  for  pay  was  held  to  be  a 
bill  of  exchange,  although   it  was  not  such   an   instrument  as  was 


FOEGERY.  735 

warranted  by  the  35  Geo.  3,  c.  94  (repealed).  R.  v.  Chlsholm,  Russ. 
&  Ry.  297. 

It  has  been  ah-eady  stated,  that  Avhere  the  instrument  alleged 
to  be  a  promissory  note,  or  bill  of  exchange,  is  not  signed,  it  cannot 
be  treated  as  such.  R.  v.  Pateman,  Russ.  &  Ry.  455  ;  R.  v.  Mopsey, 
ante,  p.  574.  So  where  the  name  of  the  payee  is  in  blank.  R.  v. 
Randall,  Russ.  &  Ry.  195.  So  an  instrument  for  the  payment  ot 
money  under  5/.,  but  unattested.  R.  v.  Moffatt,  1  Leach,  431,  ante, 
p.  574. 

An  instrument  drawn  by  A.  upon  B,,  requiring  him  to  pay  to  the 
order  of  C.  a  certaim  sum,  at  a  certain  time,  "  without  acceptance," 
is  a  bill  of  exchange,  and  may  be  so  described  in  an  indictment  for 
forgery.     Per  Patteson,  J.,  R.  v,  Kinnear,  2  Moo.  &  Rob.  117. 

A  document  in  the  ordinary  form  of  a  bill  of  exchange,  but  re- 
quiring the  drawee  to  pay  his  own  order  ("  please  to  pay  to  your 
order  "),  and  purporting  to  be  indorsed  by  the  drawer,  and  accepted 
by  the  drawee,  is  not  a  bill  of  exchange  for  the  forgery  of  which  an 
indictment  can  be  sustained.  Per  Erskine,  J.,  R.  v.  Bartlett,  2  Moo. 
&  R.  362 ;  and  see  R.  v.  Smith,  1  C.  &  K.  700,  47  E.  C.  L. 

The  forgery  of  a  single  indorsement  on  the  back  of  a  bill  of  exchange 
made  payable  to  the  i^arty  whose  name  is  forged,  together  with 
several  otliers,  as  executrixes,  was  held  to  be  within  the  third  section 
of  the  late  act.  R.  v.  Winterbottom,  1  Cox,  C.  C.  164  :  1  Den. 
C.C.  R.  41. 

A  seaman's  advance  note,  promising  to  pay,  "  provided  the  payee 
shall  sail  in  the  said  ship,  etc.,"  cannot  be  described  as  a  promissory 
note  for  the  payment  of  money,  as  it  is  not  a  peremptory  order  to  pay, 
but  a  conditional  agreement.  R.  v.  Howie,  11  Cox,  C.  C.  320.  See 
post,  p.  579. 

*Proof  of  forging  undertakings,  warrants,  or  orders  for  ^^1-77 
the  payment  of  money.  An  undertaking  to  pay  a  sum  which  ^  "^ 
is  uncertain  and  dependent  upon  a  contingency,  is  within  the  third 
section  of  the  statute.  Thus  where  the  undertaking  was  to  pay 
W.  B.  100/.,  "  or  such  other  sum  of  money,  not  exceeding  the  same, 
as  he  may  incur,  or  be  put  unto  for  or  by  reason  or  means  of  his  be- 
coming one  of  the  sureties  to  M.  M.  Esq.,  sheriff  elect  for  the  county 
of  Y  ;"  the  judges  held  it  to  be  within  the  act.  R.  v.  Reed,  8  C.  &  P. 
623,  34  E.  C.  L. ;  and  see  R.  v.  Joyce,  L.  &  C.  576. 

Forging  an  indorsement  upon  a  warrant  or  order  for  the  payment  of 
money,  is  not  within  the  above  section.  R.  v.  Arscott,  6  C.  &  P.  408. 
But  if  the  undrtaking,  warrant,  or  order  is  incomplete,  without  the 
indorsement,  so  that  until  the  indorsement  be  added,  the  instrument 
is  of  no  validity  in  the  hands  of  any  person,  then  a  forgery  of  the 
indorsement  may  be  charged  as  a  forgery  of  a  warrant  or  order  for 
the  payment  of  money.     R.  v.  Autey,  supra,   p.  565. 

If  a  cheque  payable  to  order  is  indorsed  by  a  person  other  than  the 
payee,  and  is  not  indorsed  by  the  payee,  the  person  so  indorsing  is 
liable  on  the  cheque,  and  if  such  an  indorsement  is  forged  in  order  to 


736  FORGERY. 

get  tlic  cheque  cashed  l)y  the  credit  of  the  name,  it  is  an  offence  within 
s.  24  (Willes,  J.).     R.  v.  Wardcll,  3  F.  &  F.  82. 

Previously  to  the  2  &  3  Will.  4,  c.  123,  s.  3  (now  repealed),  in  an 
indictment  for  forging  an  order  for  the  payment  of  monc}^,  it  must 
have  ap])oared,  either  upon  the  face  of  the  instrument  itself,  or  by 
proper  averments,  that  the  instrument  bore  the  character  of  an  order. 
The  prisoner  was  charged  with  forging  "  a  certain  order  for  payment 
of  money  "  as  follows  : — 

"Gentlemen,  "London,  April  24,  1809. 

"  Please  to  pay  the  bearer,  on  demand,  fifteen  pounds,  and  accompt 
it  to 

"  Your  humble  servant, 

"  Charles  H.  Ravenscroft. 
"  Payable  at  Messrs.  Masterman  &  Co., 

"  White  Hart  Court, 

"  Wm.  Mclnerheney." 

The  prisoner  being  convicted,  a  majority  of  the  judges,  on  a  case 
reserved,  held  that  this  was  not  an  order  for  the  payment  of  money, 
but  Mansfield,  C.  J.,  Wood,  B.,  and  Graham,  B.,  held  that  it  was. 
R.  V.  Ravenscroft,  Russ.  &  Ry.  161. 

A  paper  in  the  following  form,  "Mr.  Johnson,  Sir, please  to  pay  to 
James  Jackson  the  sum  of  13/.  by  order  of  Christopher  Sadler,  Thorn- 
ton-le-Moor,  brewer.  I  shall  see  you  on  Monday.  Yours  obliged, 
Chr.  Sadler,  the  District  Bank,"  was  held,  on  a  case  reserved,  to  be 
an  order  for  the  payment  of  money  within  the  repealed  statute  1 1  Geo. 
4  &  1  Will.  4,  c.  66,  s.  3 ;  Sadler  being  proved  to  be  a  customer  of 
the  District  Bank,  whose  draft,  if  genuine,  would  have  been  paid, 
although,  at  the  time  of  the  forgery,  he  had  no  effects  in  tiie  bank. 
R.  V.  Carter,  1  C.  &  K.  741,  47  E.  C.  L.;  1  Den.  C.  C.  R.  65.  See 
also  R.  V.  Vivian,  1  C.  <fe  K.  719,  47  E.  C.  L. ;  1  Den.  C.  C.  R.  35  ; 
where  it  was  held  by  the  judges  on  consideration,  that  "any  instru- 
ment for  payment  under  which,  if  genuine,  the  payer  may  recover  the 
amount  against  the  party  signing  it,  may  properly  be  considered  a  war- 
rant for  the  payment  of  money,  and  it  is  equally  this,  whatever  be  the 
^(._Q-|  state  of  the  *account  between  the  parties,  and  whether  the  party 
-I  signing  it  has,  at  the  time,  funds  in  the  hands  of  the  party  to 
whom  it  is  addressed. 

A.  C." 

or  not."      A  document  in  the  following  form,  "I.  O.  U.  35/. 

G.  W. 
given  by  A.  C.  to  his  creditor,  the  G.  W.  being  forged,  was  held  to  be 
an  undertaking  for  the  payment  of  money.  R.  v.  Chambers,  L.  R., 
1  C.  C.  R.  341 ;  41  L.  J.,  M.  C.  15. 

To  constitute  an  order  for  the  payment  of  money,  within  the  statute, 
it  is  not  necessary  that  the  instrument  should  specify  in  terms  the 
amount  ordered  to  be  paid.  AYhcre  the  order  was,  "Pay  to  Mr. 
H.  Y.,  or  order,  all  my  proportions  of  prize-money  due  to  me  for 


FORGERY.  737 

my  services  on  board  his  Majesty's  ship  Leander,"  it  was  objected, 
that  tliis  was  not  an  order  for  the  payment  of  money,  as  no  sum  of 
money  was  mentioned,  but  the  prisoner  was  convicted,  and  the 
judges  held  the  conviction  right.  R.  v.  M'Intosh,  2  East,  P.  C 
942. 

In  the  construction  of  the  words  "  warrant "  and  "  order  "  for  tlie 
payment  of  money,  it  has  been  held,  that  instruments,  which  in  the 
commercial  world  have  peculiar  denominations,  are  within  the  mean- 
ing of  those  words,  if  they  be,  in  law,  orders  or  warrants.  2  East, 
P.  C.  943.  Thus  a  bill  of  exchange  may  be  described  as  an  order  for 
the  payment  of  money,  for  every  bill  of  exchange  is,  in  law,  an  order 
for  the  payment  of  money.  R.  v.  Lockett,  2  East,  P.  C.  940,  943  ;  1 
Leach,  94 ;  R.  v.  Shepherd,  2  East,  P.  C.  944  ;  1  Leach,  226.  So  a 
bill  of  exchange  is  a  "warrant, for  the  payment  of  money,"  and  may 
be  described  in  the  indictment  as  such  ;  for,  if  genuine,  it  would  be  a 
voucher  to  the  bankers  or  drawers  for  the  payment.  R.  v.  Wil- 
loughby,  2  East,  P.  C.  944. 

A  forged  paper  purporting  to  be  an  authority  signed  by  three  offi- 
cers of  a  benefit  club,  to  receive  the  money  of  the  club  lodged  in  a 
bank,  was  held,  on  a  case  reserved,  to  be  well  described  in  some 
counts  as  a  warrant,  and  in  others  as  an  or-der,  for  the  payment  of 
money.  R.  v.  Harris,  2  Moo.  C.  C.  267.  A  post-dated  cheque  is  an 
order  for  the  payment  of  money.  R.  v.  Taylor,  1  C.  &  K.  213,  47 
E.  C.  L.  But  a  post-office  order  form  abstracted  and  filled  up  is  an 
order  to  pay  though  no  letter  of  advice  has  been  sent.  R.  v.  Vander- 
stein,  10  Cox,  C.  C.  (Irish),  177.  See  R.  v.  Gilchrist,  2  M.  C.  C.  233, 
post,  title  "  Post-office;"  see  also  R.  v.  Howie,  ante,  p.  576,  and  post, 
p.  579. 

If  the  instrument  purport  to  be  an  order  which  the  party  has  a 
right  to  make,  although  in  truth  he  had  no  such  right,  and  althoTigh 
no  such  person  be  in  existence  as  the  order  purports  to  be  made  by, 
it  is  still  an  order  within  the  statute.  2  East,  P.  C.  940.  The 
prisoner,  Charles  Lockett,  was  convicted  of  uttering  a  forged  order 
for  the  payment  of  money,  as  follows  :  "  Messrs.  Neale  &  Co.,  pay 
to  Wm.  Hopwood,  or  bearer,  16^.  10s.  6d.  R.  Vennist."  The  pris- 
oner had  given  this  order  in  payment  for  goods.  No  such  person  as 
Vennist  kept  cash  with  Neale  &  Co. ;  nor  did  it  appear  that  there 
was  any  such  person  in  existence.  The  judges,  on  considering  the 
case,  held  it  to  be  a  forgery.  They  thought  it  immaterial  whether 
such  a  man  as  Vennist  existed  or  not ;  or  if  he  did,  whether  he  kept 
cash  with  Neale  &  Co.  It  was  sufficient  that  the  order  assumed 
those  facts,  and  imported  a  right  on  the  part  of  the  drawer  to  direct 
such  a  transfer  of  his  property.  R.  v.  I^ockett,  2  East,  P.  C.  940 ; 
*1  Leach,  94,  This  appears  to  have  been  always  the  law,  r^r^n 
though  there  was  some  confusion  at  one  time  upon  the  point,  L 
which  appears  to  have  arisen  out  of  the  subtle  distinctions  formerly 
taken,  and  the  necessity  of  showing  the  nature  of  the  document  fully 
upon  the  face  of  the  indictment.  Thus  in  R.  v.  Clinch,  2  East,  P.  C. 
938 ;  1  Leach,  540,  which  is  sometimes  quoted  to  the  contrary,  the 
47 


738  FORGERY. 

discussion,  as  is  pointed  out  by  Jervis,  C.  J.,  in  R.  v.  Snelling,  infra, 
turned  entirely  on  the  form  of  the  indictment,  which  on  its  face 
showed  that  the  person  whose  name  was  forged  had  no  authority. 

In  R.  V.  Dawson,  2  Den.  C.  C.  R.  75 ;  20  L.  J.,  M.  C.  102,  the 
document  was  in  the  following  farm  :  "  Mr.  Lowe,  London.  Bought 
of  C.  Dawson,  English  and  foreign  fruit  merchant,  two  bushels  of 
apples,  9s.  Nov.  9.  Sir,  I  hope  you  will  excuse  me  sending  for  such 
a  trifle  ;  but  I  have  received  a  lawyer's  letter  this  morning,  and  unless 
I  can  make  up  a  certain  amount  by  one  o'clock,  there  will  be  an  action 
commenced  against  me,  and  I  am  obliged  to  hunt  after  every  shilling. 
Yours,  &c.,  F.  Dawson."  It  was  proved  at  the  trial  that  Lowe  was 
indebted  to  F.  Dawson,  who  carried  on  business  in  the  name  of  C. 
Dawson,  in  the  sum  of  nine  shillings  for  two  bushels  of  apples  :  that 
the  document  was  forged  and  uttered  to  Lowe  as  a  genuine  instru- 
ment coming  from  F.  Dawson,  with  the  intention  of  fraudulentl}^  ob- 
taining from  Lowe  the  above  sum.  The  document  was  held  to  be  a 
warrant.  In  that  case,  Jervis,  C  J.,  stated  the  test  to  be,  whether, 
"if  this  had  been  a  genuine  document,  and  payment  had  been  made  on 
its  production,  proof  of  those  facts  would  have  been  a  good  defence  to 
an  action."  See,  however,  R.  v.  Thorn,  2  Moo.  C.  C.  210.  There 
was  no  doubt  that  this  would  have  been  a  request  for  the  delivery  of 
money,  but  it  was  said  not  to  be  a  wai^rant  or  order;  and  the  word 
request  does  not  occur  in  the  repealed  statute  11  Geo.  4  &  1  Will.  4, 
c.  66,  s.  3.  But  this  distinction  no  longer  exists.  See  24  &  25  Vict, 
c.  98,  s.  23,  supra,  p.  554. 

A  letter  of  credit,  on  which  the  correspondents  of  the  writer  of  it, 
having  funds  of  his  in  their  possession,  apply  them  to  the  use  of  the 
party  in  whose  favor  it  is  given,  was  held  by  the  judges  to  be  a  war- 
rant for  the  payment  of  money  within  the  11  Geo.  4  &  1  Will.  4,  c. 
66,  s.  3,  R.  V,  Raake,  8  C.  &  P.  626,  34  E.  C.  L.;  2  Moo.  C.  C.  66. 
A  forged  paper  was  in  the  following  form: — "To  M.  &  Co.  Pay  to 
my  order,  two  months  after  date,  to  Mr.  I.  S.  the  sum  of  80/.,  and 
deduct  the  same  out  of  my  account."  It  was  not  signed,  but  across  it 
was  written,  "Accepted,  Luke  Lade  ;"  and  at  the  back  the  name  and 
address  of  I.  S.  M.  &  Co.  were  bankers,  and  Luke  Lade  kept  cash 
with  them.  It  was  held,  on  a  case  reserved,  that  this  paper  was  a 
warrant  for  the  payment  of  money ;  as,  if  genuine,  it  would  have 
been  a  warrant  from  Luke  Lade  to  the  bankers  to  pay  the  money  to 
I.  S.  R.  V.  Smith,  1  C.  &  K.  700,  47  E.  C.  L.;  1  Den.  C.  C.  R. 
79.      ^ 

An  instrument  containing  an  order  to  pay  the  prisoner  or  order  a 
sum  of  money,  being  a  month's  advance  on  an  intended  voyage,  as 
per  agreement  with  the  master,  in  the  margin  of  which  the  prisoner 
had  written  an  undertaking  to  sail  in  a  certain  number  of  hours,  is  an 
order  for  the  payment  of  money  within  the  11  Geo.  4  &  1  Will.  4, 
c.  66,  s.  3.  R.  V.  Bamfield,  1  Moo.  C.  C.  416.  R.  v.  Anderson,  2 
M.  &  Rob.  469.  In  R.  v.  Howie,  11  Cox,  C.  C.  320,  ante,  p.  576,  it 
seems  to  have  been  held  that  a  sailor's  advance  note  payable  upon  a  con- 
tingency was  nota  bill  of  exchange  or  promissory  note ;  it  does  not  clearly 


FORGERY.  739 

appear  whether  there  was  anotlier  count  in  the  indictment  alleging  it  to 
*be  an  order  for  the  payment  of  money  or  not,  but  it  would  r^^rorx 
seem  there  was  not.  L  '^^^ 

The  prisoner  was  charged  with  forging  "  a  certain  warrant  and 
order  for  the  payment  of  money."  The  instrument  in  question  was 
a  forged  cheque  upon  a  banker.  It  was  objected  that  this  charged  an 
offence  with  regard  to  two  instruments  ;  but  Bosanquet,  J.,  was  of 
opinion  that  the  indictment  was  sufficient.  He  thought  the  instru- 
ment was  both  a  warrant  and  an  order ;  a  warrant  authorizing  the 
banker  to  pay,  and  an  order  upon  him  to  do  so.  R.  v.  Crowther,  5  C 
&  P.  316;  and  R.  v.  Taylor,  1  C.  &  K.  213,  47  E.  C.  L. 

An  indictment  describing  the  forged  order  as  being  for  the  payment 
of  85/.  is  good,  although  it  appears  that  by  the  course  of  business  the 
bank  where  it  is  payable  would  pay  that  sum  with  interest.  R.  v. 
Atkinson,  Carr.  &  M.  325,  41  E.  C.  L. 

Nor  will  the  order  be  less  the  subject  of  forgery  on  account  of  its 
not  being  available,  by  reason  of  some  collateral  objection  not  appear- 
ing on  the  face  of  it.  2  East,  P.  C.  C.  19,  s.  45,  p.  956.  The  pris- 
oner was  convicted  of  forging  an  order  for  the  payment  of  money,  and 
it  appeared  that  the  party  whose  name  was  forged  was  a  discharged 
seaman,  who  was  at  the  time  the  order  was  dated  within  seven  miles 
of  the  place  where  his  wages  were  payable  ;  under  which  circumstance 
his  genuine  order  would  not  have  been  valid,  by  virtue  of  the  repealed 
statute  32  Geo.  3,  c.  34,  s.  2.  The  judges,  however,  held  the  convic- 
tion proper,  the  order  itself  on  the  face  of  it  purporting  to  be  made  at 
another  place  beyond  the  limited  distance.  R.  v.  M'Intosh,  2  East, 
P.  C.  942  ;  2  Leach,  883 ;  2  Russ.  Cri.  664,  5th  ed. 

In  R.  V.  Snelling,  1  Dears.  C.  C.  R.  219 ;  23  L.  J.,  M.  C.  8,  the 
forged  document  was  in  the  following  form: — "Holton,  Mar.  31, 
1853, — Sirs,  please  to  pay  the  bearer,  Mrs.  J.,  the  sum  of  854/.  10s. 
for  me,  J.  R."  It  was  held,  that,  although  not  addressed  to  any  one, 
it  might  be  shown,  by  parol  evidence,  for  whom  the  document  was 
intended,  and  this  appearing  to  be  the  banker  with  whom  J.  R.  kept 
an  account,  the  document  was  an  order  for  the  payment  of  money. 

So  it  is  no  defence  to  an  indictment  for  forging  and  uttering  an  order 
of  a  board  of  guardians  for  the  payment  of  money,  to  show  that  the 
person  who  signed  the  order  as  presiding  chairman  was  not  in  fact 
chairman  on  the  day  he  signed,  the  forgery  charged  being  of  another 
name  in  the  order.     R.  v.  Pike,  2  Moo.  C.  C  70. 

But  an  indictment  for  forging  an  order  for  relief  to  a  discharged 
prisoner,  under  the  repealed  statute  5  Geo.  4,  c.  85,  which  was  in  many 
respects  ungrammatical  and  at  variance  with  the  Act,  was  held  bad. 
R.  V.  Donnelly,  1  Moo.  C.  C.  438. 

A  scrip  certificate  of  a  railway  company  is  not  an  undertaking  for 
the  payment  of  money.     R.  v.  West,  1  Den,  C.  C.  R.  258.* 

An  undertaking  by  a  supposed  party  to  the  instrument  for  the  pay- 
ment of  money  by  a  third  person   is   within  the  section.     Therefore, 

^  The  fraudulent  counterfeiting  of  a  railroad  ticket  is  forgery  by  the  common  law. 
Commonwealth  v.  Ray,  3  Gray,  441.     S. 


740  FORGERY. 

where  the  supposed  maker  of  a  forged  instrument  undertook,  in  con- 
sideration of  goods  to  be  sold  to  R.  P.,  to  guarantee  to  the  vendor  the 
due  payment  of  such  goods ;  this  was  held  to  be  the  forgery  of  an 
undertaking  for  the  payment  of  money.  R.  v.  Stone,  I'Den.  C.  C.  R. 
181  ;  and  see  R.  v.  Joyce,  L.  &  C.  576. 

A  receipt  for  repayment  of  a  deposit  in  a  building  society  was  held 
to  be  a  warrant,  authority,  or  request  for  payment  of  money.  R.  v. 
Kay,  L.  R.,  1  C.  C.  R.  257  ;  39  L.  J.,  M.  C.  118. 

^_^.  -|  *Proof  of  forging  receipts.  In  R.  v.  "West,  1  Den.  C.  C.  R. 
-I  258,  the  majority  of  the  judges  held  that  an  instrument  profes- 
sing to  be  a  scrip  certificate  of  a  railway  company  was  not  a  receipt 
nor  an  undertaking  for  the  payment  of  money  within  the  statute : 
"  That  it  was  not  a  receipt  in  ordinary  parlance,  nor  made  with  the 
intent  of  being  such,  though  it  might  be  used  as  evidence  of  a  payment 
of  the  deposit ;  but  that  any  w^ritten  paper  capable  of  being  so  used 
was  not  a  receipt ;  as,  for  instance,  a  letter  written  by  a  landlord  to  a 
third  person,  saying  that  his  tenant  had  duly  paid  his  rent ;  that  it  was 
only  an  undertaking  to  deliver  shares  bearing  interest,  not  that  the 
interest  should  be  paid  ;  as  an  undertaking  to  deliver  a  bond  for  the 
payment  of  money  with  interest,  would  be  no  undertaking  for  the 
payment  of  money."  See  also  Clarke  v.  Newsam,  1  Exch.  R.  131  ; 
16  L.  J.,  Ex.  296. 

It  was  the  practice  of  the  treasurer  of  a  county,  when  an  order  had 
been  made  on  him  for  the  payment  of  expenses  of  a  prosecution,  to 
pay  the  whole  amount  to  the  attorney  for  the  prosecution,  or  his 
clerk,  and  to  require  the  signature  of  every  person  named  in  the  order 
to  be  written  on  the  back  of  it,  and  opposite  to  each  name  the  sum 
ordered  to  be  paid  to  each  person  respectively.  Erie,  J.,  held,  that 
such  a  signature  was  not  a  receipt  within  this  section,  but  merely  an 
authority  to  the  treasurer  to  pay  the  amount.  R.  v.  Cooper,  2  C.  & 
K.  586,*61  E.  C.  L. 

Since  the  passing  of  the  2  &  3  Will.  4,  c.  123,  s.  3  (now  repealed), 
the  document  need  not  be  shown  to  be  a  receipt  upon  the  face  of  the 
indictment,  if  by  the  evidence  it  appears  to  have  been  such.  Though 
no  reasons  were  given,  this  was  doubtless  the  ground  of  the  decision 
in  R.  V.  Martin,  7  C.  &  P.  549,  32  E.  C.  L.,  in  which  it  was  held  by 
the  judges  that  an  indictment  for  uttering  the  acquittance,  which  set 
out  the  bills  of  parcels  with  the  word  "  settled,"  and  the  supposed  sig- 
nature at  the  foot  of  it,  without  any  averment  that  the  word  "  settled  " 
imported  a  receipt  or  acquittance,  was  sufficient.  A  servant  employed 
to  ])ay  bills  received  from  her  mistress  a  bill  of  a  tradesman,  called 
Sadler,  together  with  money  to  pay  that  and  other  bills.  She  brought 
the  bill  again  to  her  mistress,  with  the  words,  *'  Paid,  sadler,"  upon  it; 
Sadler  being  written  with  a  small  s,  and  there  being  no  initial  of  the 
Christian  name  of  the  tradesman.  Lord  Denman,  C.  J.,  left  it  to  the 
jury  to  say  whether,  under  the  circumstances,  the  document  was 
intended  by  the  servant  as  a  receipt  or  acquittance  for  the  money 
^nder  the  circumstance,  and  not  merely  as  a  memorandum  of  her 


FORGERY.  741 

having  paid  the  bill.  R.  v.  Ilousoman,  8  C.  &  P.  180,  34  E.  C.  Ti. 
So  whore  the  prisoner  was  charged  with  forging  and  nttering  a  receipt, 
and  the  proof  was  that  he  had  altered  a  fignre  in  the  following  voncher, 
"11/.  5s.  lOd  for  the  high  constable,  T.  H. ;"  and  it  was  objected,  on 
the  authority  of  R.  v.  Barton,  1  Moo.  C.  C.  141,  that  the  indictment 
was  bad  for  not  containing  an  averment  what  T.  H.  meant ;  Alder- 
son,  B.,  held  it  sufficient,  and  that  the  word  "  acquittance  or  receipt  " 
was  not  necessary  to  constitute  the  instrument  such,  if  it  contairicd 
other  words  which  sufficiently  demonstrated  that  it  was  a  receipt.  R. 
V.  Boardman,  2  Lew.  C.  C.  181  ;  2  Moo.  &  R.  147. 

A  scrip  receipt,  with  the  blank  for  the  name  of  the  subscriber  not 
filled  up,  and  therefore  not  purporting  to  be  a  receipt  of  the  sum 
therein  mentioned  from  any  person,  is  not  a  "  receipt  for  money.'* 
Grose,  J.,  in  delivering  the  opinion  of  the  judges  in  this  case, 
observed,  that  the  instrument,  the  tenor  of  which  was  necessarily  set 
*forth  in  the  indictment,  was  not  a  receipt  for  money  in  con-  rj^roo 
templation  of  law,  within  the  repealed  statute  2  Geo.  2,  c.  25.  L 
That  it  was  the  duty  of  the  cashier,  appointed  by  the  bank,  to  receive 
such  subscriptions ;  to  fill  up  the  receipt  with  the  names  of  the  sub- 
scribers ;  and  until  the  blank  was  filled  up,  the  instrument  did  not  be- 
come an  acknowledgment  of  payment,  or,  in  other  words,  a  receipt  for 
money ;  while,  in  such  a  state,  it  was  no  more  a  receipt  than  if  the 
sum  professed  to  be  received  were  omitted.  That  in  R.  v.  Harrison,  2 
East,  P.  C.  926,  the  book  in  which  the  entry  was  made  imported  to 
be  a  book  containing  receipts  for  money  received  by  the  bank  for 
their  customers,  and  sliowed  that  the  money  was  received  from  the 
person  to  whom  the  book  belonged.  R.  v.  Lyon,  2  East,  P.  C.  933 ; 
2  Leach,  597. 

INIaking  a  false  entry  in  what  purports  to  be  a  banker's  pass-book, 
with  intent  to  defraud,  is  a  forgerv  of  an  accountable  receipt.  R.  v. 
Smith,  L.  &  C.  168 ;  31  L.  J.,  M.  C.  154 ;  and  R.  v.  Moody,  L.  & 
C.  173;  31  L.  J.,  M.  C.  156. 

A  turnpike  toll-gate  ticket,  under  the  3  Geo.  4,  c.  126,  s.  37  (repealed), 
"  denoting  the  payment  of  toll,"  is  a  receipt  for  money.  R.  v.  Fitch, 
L.  &  C.  159. 

The  document  must  be  such  that,  if  genuine,  it  would  amount  to  a 
receipt.  Thus  the  prisoner  was  indicted  for  forging  a  receipt  and  ac- 
quittance as  follows : — 

"  William  Chinnery,  Esq.  paid  to  X  tomson  the  som  of  8  pounds 
feb.  13,  1812."" 

It  was  not  subscribed,  but  was  uttered  by  the  prisoner  as  a  genuine 
receipt,  and  taken  as  such  by  Mr.  Chinnery's  housekeeper.  The  pris- 
oner being  convicted,  the  judges  held  the  conviction  wrong,  being  of 
opinion  that  this  could  not  be  considered  as  a  receipt.  It  was  an  as- 
sertion that  Chinnery  had  paid  the  money,  but  did  not  import  an  ac- 
knowledgment thereof.     R.  v.  Harvey,  Russ.  &  Rv.  227. 

On  an  indictment  for  uttering  a  forged  receipt  for  the  sum  of  10/., 


742  FORGERY. 

it  appeared  that  the  prisoner  pretended  that  he  was  authorized  by 
James  Reese  to  settle  the  debt  and  costs  in  an  action  brouglit  by  Reese 
against  Pritchard,  and  thereby  obtained  from  Pritcliard  the  sum  of 
10/.,  for  which  he  produced  the  following  receipt,  which  was  stamped 
with  a  2s.  Qd.  stamp  : — 

"  Received  of  Mr.  Wm.  Pritchard  by  the  hands  of  Mr.  Wm.  Grif- 
fiths the  sum  of  10/.,  being  in  full  for  debf  and  costs  due  to  the  said 
Jas.  Reese,  having  no  further  claim  against  the  said  Wm.  Pritchard. 
As  witness  my  hand,  this  15th  day  of  October,  1842. 

"  The  mark  of  X  James  Reese." 

And  it  was  clearly  proved  that  Reese  had  not  signed  the  receipt  or 
authorized  it  to  be  signed,  or  empowered  the  prisoner  to  settle  the 
debt  and  costs.  It  was  objected  that  the  receipt  was  not  properly 
stamped ;  that  the  instrument  was  not  a  receipt,  but  an  agreement ; 
and  that  the  statute  only  applied  to  cases  where  a  debt  was  actually 
due.  But  Wightman,  J.,  overruled  the  objection,  and  the  prisoner  was 
convicted.     R.  v.  Griffith,  2  Russ.  Cri.  874,  5th  ed. 

But  the  document  need  not  be  signed.  In  R.  v.  Juda,  2  C.  &  K.  635,  61 
E.  C.  L.,an  unsigned  forged  paper,  "  Received  from  Mr.  Bendon,  due  to 
*f^8'^1  *^I^'-  Warman,  17s. — Settled,"  was  held  to  be  a  forged  receipt 
'  -I    within  this  section. 

A  "  clearance  ticket,"  issued  upon  the  transferring  of  a  member 
from  one  branch  of  a  benefit  society  to  another,  certifying  that 
the  member  had  paid  all  dues,  is  not  an  acquittance  or  receipt 
within  section  23.  R.  v.  French,  L.  R.,  1  C.  C.  R.  217  ;  39  L.  J., 
M.  C.  58. 

So  also  it  has  been  ruled  that  an  ordinary  railway-ticket  is  not  a 
"  receipt  or  acquittance."  Per  Cleasby,  B.,  R.  v.  Gooden,  11  Cox,  C. 
C.  672. 

Forgery  of  particular  instruments — warrants,  orders,  and  re- 
quests for  the  delivery  of  goods.  The  law  as  to  forging  undertak- 
ings, warrants,  and  orders  for  the  payment  of  money  serves  to  illus- 
trate this  class  of  forgeries  also.  The  same  particularity  was  formerly 
required  in  stating  the  offence  upon  the  indictment,  and  the  same  stat- 
utory alteration  of  the  law  in  this  respect  has  occurred  with  the  same 
consequences.  Seep.  501.  The  prisoner  was  indicted  for  uttering 
a  forged  request  for  the  delivery  of  goods,  in  the  words  and  figures 
following : — 

"  Gentlemen,  Be  so  good  as  to  let  bearer  have  5J  yards  of  blue  to 
pattern,  etc.,  and  you  will  oblige  W.  Reading,  Mortimer  St." 

The  request  was  not  addressed  to  any  one.  The  prisoner  being  con- 
victed, the  recorder  respited  the  judgment,  to  take  the  opinion  of  the 
judges  on  the  question  whether,  as  the  request  was  not  addressed  to 
any  individual  person  by  name  or  description,  it  was  a  request  for 
the  delivery  of  goods  within  the  words  and  true  intent  of  the  statute. 


FORGERY.  743 

All  the  judges  who  were  present  at  the  meeting  held  the  conviction 
right.  R.  V.  Carney,  1  Moo.  C.  C.  351.  This  is  contrary  to  some  of 
the  previous  cases ;  see  R.  v.  Cullen,  Id.  300.  No  difficulty  would 
arise  now  in  such  a  case ;  as  the  person  to  whom  the  request  was 
made  might  be  shown  by  the  evidence  under  the  provisions  of  the 
14  &  15  Vict.  c.  100,  s.  5,  or  the  24  &  25  Vict.  c.  98,  s.  44,  supra, 
p.  560.  R.  V.  Pulbrook,  9  C.  &  P.  37,  38  E.  C.  L.,  where  the  judges 
held  that  an  instrument  merely  specifying  the  goods,  may  be  shown  to 
be  a  request  by  the  custom  of  the  trade  ;  see  also  R.  v.  Rogers,  9  C.& 
P.  41,  38  E.  C.  L.;  R.  v.  Walters,  Carr.  &  M.  588,  41  E.  C.  L.,  and 
R.  V.  Snelling,  ante,  p.  580. 

An  instrument  may  be  a  request,  although  it  be  also  an  undertakino- 
to  pay  for  the  goods.  R.  v.  White,  9  C.  &  P.  282,  38  E.  C.  L.  ^ 
"  In  the  following  case  a  forged  order  was  held  to  be  within  the 
act,  although  the  party  whose  name  was  forged  had  not  any  authority 
over,  or  interest  in  the  goods,  neither  did  the  request  profess  to  charge 
such  party,  the  goods  being  supplied  on  the  credit  of  the  prisoner  : 
— The  letter  represented  to  the  prosecutor  that  JNI.  C.  was  dead,  and 
had  left  him  50/.  or  60/.,  and  it  was  in  the  hands  of  A.  D.,  and  that 
he  wanted  mourning.  The  prosecutor  refused  to  let  the  prisoner  have 
the  goods^  but  said  he  should  have  them  if  he  would  get  an  order  for 
them  from  A.  D.  In  about  half  an  hour  the  prisoner  returned  with 
a  forged  jmper,  purporting  to  be  signed  by  A.  D.,  containing  (inter 
alia)  as  follows  :  "  Please  to  let  W.  T.  have  such  things  as  he  wants 
for  the  purpose.  Sir,  I  have  got  the  mount  of  27/.  for  M,  C  in  my 
keeping  these  many  years."  The  prisoner  being  convicted,  it  was 
held  by  the  judges  that  the  conviction  was  right.  R.  v.  Thomas,  7  C. 
&  P.  851,  32  E.  C.  L.;  2  Moo.  C.  C.  16. 

*So  a  forged  paper  purporting  to  be  addressed  to  a  trades-  r^roj. 
man  by  one  of  his  customers  in  the  following  form  :  "  Pleas  to  '- 
let  bearer,  William  Gof,  have  spillshoul  and  grafting  tool  for  me," 
was  held  by  Gurney,  B.,  to  be  a  forged  request  for  the  delivery  of 
goods  within  the  statute.  R.  v.  James,  8  C.  &  P.  292,  34  E.  C.  L. 
See  also  R.  v.  White,  9  C.  &  P.  282,  supra,  38  E.  C.  L. 

A  tasting  order  to  taste  wine  in  the  London  Docks  has  been  held 
to  be  an  order  for  the  delivery  of  goods  within  this  section.  R.  v. 
Illidge,  1  Den.  C.  C.  R.  404  ;  18  L.  J.,  M.  C.  179. 

In  a  forged  order  for  the  delivery  of  goods,  it  does  not  appear  to  be 
necessary  that  the  particular  goods  should  be  specified  in  the  order, 
provided  it  be  in  terms  intelligible  to  the  parties  themselves  to  whom 
the  order  is  addressed.  2  East,  P.  C.  941.  The  prisoner  was  indicted 
for  forging  an  order  for  the  delivery  of  goods,  as  follows : — "  Sir, 
Please  to  deliver  my  work  to  the  bearer.  Lydia  Bell."  Mrs.  Bell, 
a  silversmith,  proved  that  she  had  sent  several  articles  of  plate  to 
Goldsmiths'-hall  to  be  marked.  The  form  of  the  order  was  such  as 
is  usually  sent  on  such  occasions,  except  that  in  strictness,  and  by  the 
rule  of  the  plate-office,  the  several  sorts  of  work,  with  the  weight  of 
the  silver,  ought  to  have  been  mentioned  in  it.  The  prisoner  being 
convicted,  the  judges  were  of  opinion  that  the  conviction  was  right. 


744  FORGERY. 

R.  V.  Jones,  2  East,  P.  C.  941  ;  1  Leach,  53 ;  and  see  R.  v.  Thomas, 
supra. 

Proof  of  destroying,  defacing,  or  injuring  registers.  The  pris- 
oner was  employed  in  getting  up  a  pedigree  for  the  purpose  of  evidence 
in  a  civil  action,  and  for  that  purpose  searched  the  registers  of  births, 
etc.,  in  the  parish  of  C  On  one  occasion,  whilst  the  curate  of  the 
parish,  who  was  with  him,  was  looking  into  an  iron  chest  for  another 
book,  and  had  his  back  turned,  the  prisoner  tore  off  the  lower  portion 
of  one  of  the  leaves  of  one  of  the  registers.  The  part  torn  off  was  not 
destroyed,  and  the  book  was  subsequently  repaired,  and  was  then  as 
legible  as  before.  The  jury  found  that  the  prisoner  tore  the  book 
wilfully,  and  he  was  convicted,  and  the  Court  of  Criminal  Appeal 
affirmed  the  conviction.     R.  v.  Bowen,  1  Den.  C.  C.  22. 

Proof  of  forging  county  court  process.  In  R.  v.  Evans,  Dears. 
&  B.  C.  C.  236 ;  26  L.  J.,  M.  C.  92,  the  prisoner,  being  a  creditor 
of  R.,  sent  him  a  letter,  not  in  any  way  resembling  county  court 
process,  but  headed  with  the  royal  arms,  and  purporting  to  be  signed 
by  the  clerk  of  the  county  court,  threatening  county  court  proceed- 
ings. He  afterwards  told  the  wife  of  R.  that  he  had  ordered  the 
county  court  to  send  the  letter,  upon  which  she  paid  the  debt ;  he 
also  made  a  claim  for  county  court  expenses,  which  was  not  paid. 
Held,  that  the  prisoner  was  rightly  convicted  on  an  indictment 
charging  him  with  forging  county  court  process.  In  R.  v.  Castle, 
Dears.  &  B.  C.  C.  363,  the  prisoner  delivered  to  one  T.  C.  a  paper, 
headed,  "In  the  county  court  of  L.,  A.  plaintiff  and  T.  C.  de- 
fendant ;"  it  was  addressed  to  "  T.  C.  the  above  defendant,"  and 
gave  him  notice  to  produce,  "  on  the  trial  of  this  cause,"  on  a  given 
day,  certain  accounts  and  papers  ;  and  at  the  foot  of  tlie  paper  were 
the  words,  "  By  the  plaintiff."  It  was  held  that  a  conviction  under 
the  above  section  was  wrong,  inasmuch  as  the  paper  did  not  purport 
to  be  a  copy  of  summons  to  witnesses  under  s.  85  (now  repealed)  of 
the  9  &  10  Vict.  c.  95,  or  of  any  other  process  of  the  county  court,  or 
*f;q"1  *^o  b^  anything  more  than  a  mere  notice  to  produce.  In  R.  v. 
'^^'^-1  Richmond,  1  Bell,  C.  C.  142 ;  28  L.  J.,  M.  C.  188,  the  pris- 
oner iiad  obtained  a  blank  printed  form  for  plaintiff's  instructions  to 
issue  county  court  summons,  wiiich  he  filled  up  with  particulars  of 
the  names  and  addresses  of  himself  as  plaintiff,  and  B.  as  defendant, 
and  of  the  nature  and  amount  of  the  claim.  He  then,  without  any 
authority,  signed  it  with  the  name  of  the  registrar,  and  indorsed  upon  it 
a  notice  in  the  name  of  that  officer,  that  unless  the  amount  claimed 
were  paid  by  a  certain  day,  an  execution  warrant  would  issue  against 
him.  This  paper  he  delivered  to  B.,  with  intent  thereby  to  obtain 
payment  of  the  debt ;  it  was  held  that  this  was  a  forgery  of  county 
court  process  within  the  9  &  10  Vict.  c.  95,  s.  57. 

Proof  of   the  uttering,   disposing  of.  or  putting  off.     It   is  an 
offence  at  common  law  to   utter  a  forged   instrument,  the  forgery  of 


FORGERY.  745 

which  is  an  offence  at  common  law.  Where,  therefore,  the  prisoner 
was  indicted  for  uttering  a  forged  testimonial  to  his  character  as  a 
schoolmaster,  and  the  jury  found  him  guilty  of  uttering  the  forged 
document  with  intent  to  obtain  the  emoluments  of  the  place  as  school- 
master, and  to  deceive,  it  was  held  that  the  prisoner  was  properly  con- 
victed. R.  V.  Sharman,  Dears.  C.  C.  285 ;  23  L.  J.,  M.  C.  51  •  over- 
ruling R.  V.  Boult,  2  C.  &  K.  604,  47  E.  C.  L. 

The  terms  generally  used  to  describe  the  offence  in  the  various  stat- 
utes relating  to  forgery  are,  "offer,  utter,  dispose  of,  or  put  off." 

The  proof  is  very  similar  to  that  of  uttering,  etc.,  counterfeit  coin, 
as  to  which,  see  ante,  p.  413,  and  cases  there  cited.^ 

Where  the  prisoner  presented  a  bill  for  payment  with  a  forged  in- 
dorsement on  it  of  a  receipt  by  the  payee,  and  on  the  person  to  whom 
it  was  presented  objecting  to  a  variance  between  the  spelling  of  the 
payee's  name  in  the  bill  and  in  the  indorsement,  the  prisoner  altered 
the  indorsement  into  a  receipt  by  himself  for  the  drawer,  it  was  ruled 
that  the  presenting  of  the  bill  before  the  objection  was  a  sufficient 
uttering  of  the  forged  indorsement.  R.  v.  Arscott,  6  C.  &  P.  408,  25 
E.  C.  L. 

Where  upon  an  indictment  for  uttering  a  forged  acceptance  to  a  bill 
of  exchange  it  appeared  that  the  bill  in  question  came  inclosed  in  a 
letter  in  the  prisoner's  handwriting,  and  that  the  day  before  the  bill 
became  due  the  prisoner  wrote  a  letter  acknowledging  that  it  was  a 
forgery,  it  was  held  not  to  be  necessary  to  prove  either  that  the  pris- 
oner put  the  letter  into  the  post  himself,  or  commissioned  anybody 
else  to  do  so.     B.  v.  M'Quin,  1  Cox,  C.  C.  34. 

It  has  been  said  that  handing  forged  instruments  from  one  person 
to  another  is  not  "  uttering,"  in  the  criminal  sense  of  that  word,  if  the 
person  to  whom  the  instruments  are  handed  knows  that  they  are 
forged.  In  R.  v.  Hey  wood,  2  C.  &  K.  352,  61  E.  C.  L.,  Alderson, 
B.,  held  that  if  A.  handed  to  B.,  who  was  a  party  to  the  fraud,  a 
forged  certificate  of  a  pretended  marriage  between  himself  and  B.,  in 
order  that  B.  might  give  it  to  a  third  person,  A.  was  not  guilty  of 
uttering.  But  a  different  decision  has  been  come  to  on  the  words, 
"dispose  of  or  put  away,"  in  the  repealed  statute  of  15  Geo.  2,  c.  13, 
s.  11.  The  prisoners  were  indicted  for  disposing  and  putting  away 
forged  Bank  of  England  notes.  It  appeared  that  the  prisoner,  Palmer, 
had  been  in  the  habit  of  putting  off  forged  bank  notes,  and  had  em- 
ployed the  other  prisoner,  Sarah  Hudson,  in  putting  them  off.  The 
latter  having  *offered  a  forged  note  in  payment,  in  the  ev^ening  r*ro/^ 
of  the  same  day  Palmer  went  with  her  to  the  person  wno  nad  •- 
stopped  it,  and  said,  "  This  woman  has  been  here  to-day,  and  offered 
a  two-pound  note,  which  you  have  stoj^ped,  and  I  must  either  have 
the  note  or  the  change,"     It  was  contended  for  the  prisoners  that  the 

'  Proof  that  the  defendant  had  in  his  possession  and  uttered  a  forged  commercial 
instrument,  raises  no  presumption  tliat  the  defendant  committed  the  forgery.  Miller 
r.  State,  oT  Ind.  405  On  a  trial  for  uttering  a  forged  promissory  note,  evidence  to 
show  that  the  note  had  been  paid  is  immaterial,  and  should  be  excluded.  Brown  v. 
State,  8  Hun,  (N.  Y.)  562.  Uttering  forged  paper  is  not  forgery.  Buren  v.  State, 
1(3  Lea,  (Tenn.)  61. 


746  FORGERY. 

evidence  was  of  two  distinct  and  separate  offences,  and  not  of  a  joint 
offence.  The  jury  having  found  Palmer  guilty  of  the  offence  of  dis- 
posing and  putting  away  the  note,  a  case  was  reserved  for  the  opinion 
of  the  judges,  which  was  delivered  by  ISIr.  Justice  Grose.  He  said 
that  a  difference  of  opinion  had  existed  among  the  judges,  some  hold- 
ing that  until  Sarah  Hudson  uttered  the  note  it  was  to  be  considered 
as  virtually  in  Palmer's  possession,  and  that  when  she  did  utter  it  he 
was  to  be  considered  only  as  an  accessory  before  the  fact,  and  ought  to 
have  been  so  indicted.  But  a  great  majority  of  the  j  udges  were  of  opinion 
that  the  conviction  was  right.  It  clearly  appeared  that  Palmer  know- 
ingly delivered  the  forged  note  into  the  hands  of  Sarah  Hudson,  for 
the  fraudulent  purpose  of  uttering  it  for  his  own  use.  He  could  not 
have  recovered  it  back  by  any  action  at  law.  It  was  out  of  his  legal 
power,  and  when  it  was  actually  uttered  by  her,  the  note  was  disposed 
of,  and  put  away  by  him  through  her  means.  As  delivering  an  instru- 
ment to  another  was  a  step  towards  uttering  it,  it  seemed  most  con- 
sonant to  the  intentions  of  the  legislature  to  hold  that  the  delivery  to 
another  for  a  fraudulent  purpose  was  an  offence  within  the  words,  "dis- 
posed of,"  or  "put  away,"  R.  v.  Palmer,  2  Leach,  978  ;  1  Bos.  &  P. 
N.  R.  96  ;  Russ.  &  Ry.  72. 

The  same  point  arose,  and  was  decided  in  the  same  way,  in  R.  v. 
Giles,  1  Moo.  C.  C.  166.  The  jury  in  that  case  found  the  prisoner 
had  given  the  note  to  one  Burr,  and  that  he  was  ignorant  of  its  being 
forged,  and  paid  it  away.  The  judges  to  whom  the  case  was  referred, 
thought  that  Burr  knew  it  was  forged ;  but  were  of  opinion  that  the 
giving  the  note  to  him,  that  he  might  pass  it,  was  a  disposing  of  it 
to  him,  and  that  the  conviction  was  right.  Had  the  prisoner  been 
charged  with  uttering  instead  of  disposing  of  the  note,  it  seems  that, 
according  to  the  view  of  the  case  taken  by  the  judges.  Burr  being 
cognizant  of  the  forgery,  the  prisoner  could  not  have  been  convicted 
on  that  indictment,  as  in  that  case  his  offence  would  have  been  that  of 
accessory  before  the  fact.  See  R.  v.  Soares,  Russ.  &  Ry.  25 ;  2  East, 
P.  C.  974;  R.  V.  Davis,  Russ.  &  Ry.  113,  ante,  p.  414. 

It  seems  that  in  the  case  of  the  forgery  of  an  instrument  which  has 
effect  only  by  its  passing,  the  mere  showing  of  such  false  instrument 
with  intent  thereby  to  gain  credit  is  not  an  offence  within  the  statutes 
against  forgery.  The  prisoner  was  indicted  (under  the  repealed  statute 
13  Geo.  3,  c.  79)  for  uttering  and  publishing  a  promissory  note  con- 
taining the  words,  etc.  It  appears  that  in  order  to  persuade  an  inn- 
keeper that  he  was  a  man  of  substance,  he  one  day  after  dinner 
pulled  out  a  pocket-book,  and  showed  him  the  note  in  question,  and  a 
50/.  note  of  the  same  kind.  He  said  he  did  not  like  to  carry  so  much 
property  about  him,  and  begged  the  innkeeper  to  take  charge  of  them, 
which  he  did.  On  opening  the  pocket-book  some  time  afterwards  the 
notes  were  found  to  be  forged.  The  prisoner  being  convicted,  the 
judges  held  that  this  did  not  amount  to  an  uttering.  In  order  to 
make  it  such,  they  seemed  to  be  of  opinion  that  it  should  be  parted 
with,  or  tendered,  or  offered,  or  used  in  some  way  to  get  money  or 
credit  upon  it.     R.  v.  Shukard,  Russ.  &  Ry.  200.     "  The  words,  *  upon 


FORGERY.  747 

*it,'  we  considered  as  equivalent  to,  '  by  means  of  it/  otherwise   r^roj 
there  could  hardly  be  an  uttering  of  court-rolls  and  other   in-    ^ 
struments  enumerated  in  the  statute."     Pei'  Campbell,  C.  J.,  in  deliv- 
ering the  judgment  of  the  court  in  R.  v.  Jones,  infra. 

But  if  A.  exhibit  a  forged  receipt  to  B.,  a  person  with  whom  he  is 
claiming  credit  for  it,  this  is  an  uttering  within  the  11  Geo.  4  &  1 
Will.  4,  c.  60,  s.  10  (repealed),  although  A.  refuse  to  part  with  the 
possession  of  the  paper  out  of  his  hand.  R.  v.  Radford,  1  C.  &  K. 
707,  47  E.  C.  L. ;  1  Den.  C.  C.  59.  In  this  latter  case,  which  was 
reserved  for  the  consideration  of  the  judges.  Pollock,  C.  B.,  said,  "  In 
all  these  cases  reference  must  be  had  to  the  subject.  A  purse  is  of  no 
use  except  it  be  given.  Not  so  a  receipt,  or  turnpike  ticket.  A  prom- 
issory note  must  be  tendered  to  be  taken.  Not  so  a  receipt,  as  the  per- 
son who  has  it  is  to  keep  it."  In  R.  v.  Jones,  2  Den.  C.  C.  R.  475  ; 
21  L.  J.,  M.  C.  166,  the  prisoner  placed  a  forged  receipt  for  poor-rates 
in  the  hands  of  the  prosecutor  for  inspection,  in  order  that  by  repre- 
senting who  had  paid  the  rates  he  might  induce  the  prosecutor  to  ad- 
vance money  to  a  third  person.  This  was  held  to  be  an  uttering  within 
the  11  Geo.  4  &  1  Will.  4,  c.  6Q,  s.  10. 

The  prisoner  was  indicted  in  London  under  the  44  Geo.  3,  c.  98, 
for  uttering  forged  medicine  stamps.  Having  an  order  to  supply 
medicines  to  certain  persons  at  Bath,  he  delivered  them  at  his  house 
in  Middlesex  to  a  porter,  to  carry  them  to  Aldersgate  Street,  in 
London,  to  the  Bath  wagon.  It  was  objected  that  this  was  not  an 
utter-ing  by  the  prisoner  in  the  city  of  London,  and  upon  the  argu- 
ment of  the  case  before  the  judges,  there  was  a  difference  of  opinion 
upon  the  subject,  although  the  majority  held  the  offence  complete  in 
London.  R.  v.  Collicott,  2  Leach,  1048  ;  Russ.  &  Ry.  212  ;  4  Taunt. 
300. 

In  R.  V.  FItchie,  Dears.  &  B.  C.  C.  175 ;  26  L.  J.,  M.  C.  90,  the 
prisoner,  a  pawnbroker,  was  indicted  for  uttering  a  forged  account- 
able receipt  for  goods.  The  uttering  proved  was  that  the  prisoner 
being  called  upon  to  produce  the  pawn-ticket  in  a  proceeding  before 
the  magistrates  to  recover  the  goods  by  the  person  who  pledged  them, 
his  attorney.  In  his  presence,  produced  and  handed  up  the  forged 
ticket  as  the  genuine  ticket  relating  to  the  goods.  The  jury  found 
that  the  prisoner,  through  his  attorney,  delivered  the  ticket  to  the 
magistrate  as  a  genuine  ticket ;  and  It  was  held  that  this  was  an 
uttering  by  the  prisoner. 

A  conditional  uttering  of  a  forged  Instrument  is  as  much  a  crime 
as  any  other  uttering.  Where  a  person  gave  a  forged  acceptance, 
knowing  It  to  be  so,  to  the  manager  of  a  banking  company  with 
which  he  kept  an  account,  saying  that  he  hoped  the  bill  would  satisfy 
the  bank  as  a  security  for  the  debt  he  owed,  and  the  manager  replied 
that  that  would  depend  on  the  result  of  Inquiries  respecting  the  ac- 
ceptors, Patteson,  J.,  held  It  to  be  a  sufficient  uttering.  R.  v.  Cooke, 
8  C.  &  P.  582,  34  E.  C.  L. 

Where  an  engraving  of  a  forged  note  was  given  to  a  party  as  a 
pattern  or  sijeclmen  of  skill   but  with  no  intention  that  that  particular 


748  FORGERY. 

note  slioukl  be  put  in  circulation,  Littlodale,  J.,  held  that  this  was  not 
an  uttering.     R.  v.  Harris,  7  C.  &  P.  428,  32  E.  C.  L. 

Proof  of  the  intent  to  defraud.  In  general,  as  has  already  been  said 
(p.  543),  an  intent  to  defraud  is  an  essential  ingredient  in  the  offence 
of  forgery.  The  definition  of  the  crime  by  Grose,  J.,  on  delivering 
the  opinion  of  the  judges,  is  "  the  false  making  of  a  note  or  other 
.  -,  *instrument  with  intent  to  defraud.''  R.  v.  Parkes,  2  Leach, 
^«»J  775  .  2  East,  P.  C.  853.  So  it  was  defined  by  Eyre,  B.,  "  the 
false  making  of  an  instrument,  which  purports  on  the  face  of  it  to  be 
good  and  valid,  for  the  purposes  for  which  it  was  created,  with  a  de- 
sign to  defraud."  R.  v.  Jones,  1  Leach,  367 ;  2  East,  P.  C.  853.  The 
word  deceive  has  been  used  by  BuUer,  J.,  instead  of  the  word  defraud; 
but  it  has  been  observed,  that  the  meaning  of  this  word  must  doubt- 
let^s  be  included  in  that  of  the  word  defraud.  2  East,  P.  C.  853.  In 
R.  V.  Tylney,  1  Den.  C.  C.  R.  321,  the  judges  were  divided  in  opinion 
whether  the  prisoner  could  be  convicted  of  forging  a  will  without 
proof  that  the  forged  instrument  was  capable  of  effecting  a  fraud  on 
some  person  or  other. 

But  this  doubt  is  settled  by  R.  v.  Hodgson,  supra,  p.  543,  from 
which  it  appears  that,  except  in  those  statutory  forgeries  where  no 
intent  is  mentioned  in  the  statute,  an  intent  to  defraud  is  always 
necessary  to  be  proved.  And  it  has  been  said  that  it  is  necessary  to 
allege  an  intent  to  defraud  in  an  indictment  under  s.  28,  ante,  p.  555, 
for  forging  any  process  of  a  court.  Per  Quain,  J.,  R.  v.  Powner,  12 
Cox,  C:  C.  233. 

If  A.  put  the  name  of  B.  on  a  bill  of  exchange,  as  acceptor,  without 
B.'s  authority,  expecting  to  be  able  to  meet  it  when  due,  or  expecting 
that  B.  will  overlook  it,  this  is  a  forgery ;  but  if  A.  either  had  author- 
ity from  B.,  or,  from  the  coarse  of  their  dealing,  bond  fide  believed 
that  he  had  authority  from  B.,  to  use  his  name,  it  is  not  forgerv.  Per 
Coleridge,  J.,  R.  v.  Forbes,  7  C.  &  P.  224,  32  E.  C.  L.;  R.  v.  Parish, 
8  C.  &  P.  94,  34  E.  C.  L.  And  the  fact  that  the  party  in  whose 
name  the  bills  were  drawn  had  not  paid  or  recognized  such  bills  Avould 
be  good  evidence  of  the  authority,  or  bond  fide  belief  of  the  authority. 
R.  V.  Beard,  8  C.  &  P.  143.  The  prisoner,  a  solicitor,  being  applied  to 
for  a  loan  of  money  by  one  R.  T.,  entered  into  a  negotiation  with  J. 
E.  to  advance  the  money.  This  J.  E.  agreed  to  do,  upon  the  prisoner 
giving  him  proper  security.  Accordingly  the  prisoner  handed  him  a 
bond,  purporting  to  be  signed  by  R.  T.  and  E.  D.,  the  brother-in-law 
of  R.  T.,  whose  execntion  professed  to  have  been  M'itnessed  by  the 
prisoner  ;  and  the  money  was  handed  over  by  J.  E.  to  the  prisoner, 
and  by  him  paid  to  R.  T.  Both  the  signatures  were  written  by  the 
prisoner,  in  his  own  handwriting,  and  without  any  attempt  at  con- 
cealment or  imitation.  Great  intimacy  was  admitted  to  have  existed 
between  all  the  parties,  and  R.  T.  and  E.  D.  being  called,  though  tliey 
denied  that  the  prisoner  had  any  authority  to  sign  the  deed  in  their 
name,  admitted  that,  if  they  had  been;ipplied  to  for  that  purpose,  they 
would  themselves  have  executed  it.   Cliuiuiell,  B.,  said,  that  if  the  jury 


FORGERY.  749 

thought  the  prisoner  intended  to  defraud  J.  E.  when  he  delivered  to 
him  the  bond,  they  ought  to  convict  the  prisoner,  which  they  did.  R. 
V.  Trenfield,  1  F.  &  F.  43.  So  where  a  clerk  i-eceived  a  blank  cheque 
signed  with  directions  to  fill  in  a  certain  amoinit,  and  he  filled  in  a 
larger  amount  and  appropriated  the  cheque,  it  was  held  to  be  forgery, 
although  the  larger  amount  was  due  to  him  for  salary.  11.  v.  Wilson, 
1  Den.  C.  C.  284,  17  L.  J.,  M.  C.  82. 

The  intent  to  defraud  may  be  presumed  from  the  general  conduct 
of  the  defendant ;  and  if  the  necessary  consequence  of  the  prisoner's 
acts  be  to  defraud  some  particular  person,  the  jury  may  convict,  not- 
witlistanding  that  that  person  states  his  belief,  on  oath,  that  the  pris- 
oner did  not  intend  to  defraud  him.  R.  v.  Sheppard,  Russ.  &  Ry. 
169  ;  R.  V.  Hill,  8  C.  &  P.  274,  34  E.  C.  L.^ 

*The  only  cases  in  which  on  an  indictment  for  forgery  or   r^roq 
uttering  an  intent  to  defraud  need  not  be  proved,  are  where   L 
the  forgery  of  an  instruunent  is  made  by  any  statute  criminal  without 
proof  of  any  intent.     There  it  is  not  necessary.     R.  v.  Ogden,  6  C. 
&  P.  631,  25  E.  C.  L. 

Proof  of  the  intent  to  defraud — party  intended  to  be  defrauded. 

Although  by  the  24  &  25  Vict.  c.  98,  s.  44  {supra,  p.  560),  it  is  no 
longer  necessary  to  specify  in  the  indictment  the  particular  person 
whom  the  prisoner  intended  to  defraud,  or  even  to  prove  an  intent  to 
defraud  any  particular  person  ;  yet  the  general  intent  to  defraud, 
which  it  is  necessary  to  prove,  cannot  exist  unless  the  circumstances 
of  the  case  are  such  that  the  natural  consequence  of  the  prisoner's  act 
would  be  to  defraud  some  one  or  other.^  Thus  in  R.  v.  Hodgson, 
Dears.  &  B.  C.  C.  3  ;  25  L.  J.,  M.  C.  78,  where  the  prisoner  forged  a 
diploma  of  the  College  of  Surgeons,  Avith  intent  to  induce  people  to 
believe  that  he  was  a  member  of  the  college,  the  convcition  was  quaslied, 
because  it  appeared  that  he  had  no  intent  in  forging  to  commit  any 

^  United  States  v.  Moses,  4  Wash.  C.  C.  726.  [An  intent  to  defraud  may  be  inferred 
by  the  jury  from  the  fact  that  the  defendant  obtained  goods  on  the  paper  alleged  to 
be  forged.  So  also  that  he  forged  the  paper.  Allen  r.  State,  74  Ala.  557.  An  intent 
to  defraud  will  be  presumed  from  the  forgery  itself.  Rounds  v.  State,  78  Me.  42.]  If 
the  indictment  lay  the  intent  to  defraud  A.,  proof  of  an  intent  to  defraud  A.  and  B. 
will  sustain  the  indictment.  Veazie's  Case,  7  Greenl.  131.  To  constitute  the  oflTence 
of  forgery  in  counterfeiting  the  notes  of  a  bank,  it  is  not  necessary  that  such  bank  as 
the  notes  purport  to  have  been  issued  by,  sliould  liave  a  le.gal  existence.  Wliere,  how- 
ever, the  intent  is  charged  to  have  been  to  defraud  the  bank,  purporting  to  liave  is- 
sued tlie  notes,  the  bank  must  be  shown  to  be  a  real  body,  capable  of  being  defrauded. 
People  V.  Peabody,  25  Wend.  472.  Intent  may  be  laid  to  defraud  either  the  party 
whose  name  is  forged,  or  the  party  to  whom  it  is  passed.  State  v.  Cleveland,  6  Nev. 
181.  The  criminal  intent  which  the  law  infers  from  forging  an  instrument  and  using 
it  as  evidence  of  a  claim  against  the  person  whose  name  is  forged,  cannot  be  negatived 
by  proof  that  the  cla  m  was  really  a  just  one.     State  v.  Wooderd,  20  la.  541.     S. 

Tlie  intent  to  defraud  must  appear  either  on  the  face  of  the  instrument  or  in  aver- 
ments in  indictment  as  to  facts.     State  v.  Weaver,  94  N,  C.  836. 

^  The  intent  to  defraud  must  be  proved.  Constructive  notice  by  a  public  record  is 
no  substitute  for  actual  notice  to  establish  the  scienter  requisite  to  criminal  intention. 
Pearson  v.  State,  55  Ga.  659.  One  who  forges  the  name  of  a  deceased  person,  for  the 
purpose  of  defrauding  his  estate,  is  guilty  of  the  crime  of  forgery.  Billings  v.  State, 
107  Ind.  54. 


750  FORGERY. 

fraud  or  specific  wrong  to  any  person.  This  was V held  on  the  14  & 
15  Vict.  c.  100,  s.  8,  which  is  in  similar  terms  to  the  24  &  25  Vict, 
c.  98   s.  44. 

'  Nash's  case  (2  Den.  C.  C.  493 ;  21  L.  J.,  M.  C.  147),  on  the  other 
hand,  shows  that  if  the  prisoner  had  an  intent  by  forgery  to  defraud 
a  particular  person,  it  is  immaterial  A\hetlier  there  was  any  person 
capable  of  being  so  defrauded.  In  giving  judgment  in  that  case, 
Maule,  J.,  put  the  case  of  a  man  forging  a  cheque  on  a  bank  at  which 
the  forger  wrongly  supposed  the  person  whose  name  was  foi'ged  to 
keep  an  account.  In  such  a  case,  he  said,  there  would  be  an  intent  to 
defraud  although  no  person  could  be  defrauded.  See,  too,  R.  v.  Hol- 
den,  Russ.  &  R.  154.  If  the  intent  to  defraud  exists,  the  fact  that 
the  person  who  would  have  to  pay  the  forged  instrument  (if  genuine) 
is  not  likely  to  be  imposed  upon  by  the  forgery,  does  not  disprove  an 
intent  to  defraud  that  person,  even  if  the  forger  had  no  special  intent 
in  relation  to  him,  but  intended  only  to  defraud  those  who  might  hap- 
pen to  take  the  forged  instrument  in  the  first  instance.  R.  v.  Maza- 
gora,  R.  &  R.  291.  This  was  decided  under  the  old  law,  when  it  was 
necessary  to  lay  in  the  indictment  an  intent  to  defraud  a  particular 
person,  and  to  prove  it  as  laid ;  but  it  is  now  of  little  importance,  as 
there  can  be  no  doubt  that  the  intent  to  defraud  those  particular, 
though  at  the  moment  of  the  forgery  unascertained,  persons,  who 
might  happen  to  deal  with  the  forged  instruments  in  the  first  instance, 
would  be  such  an  intent  to  defraud  as  is  contemplated  by  24  &  25 
Vict.  c.  98,  s.  44. 

Proof  of  the  falsity  of  the  instrument.  It  is  essential,  of  course, 
to  prove  the  falsity  of  the  instrument.  This  may  be  done  in  various 
ways.  If  the  forgery  is  of  the  name  of  an  existing  person,  it  is  ne- 
cessary to  disprove  that  the  handwriting  is  his,  and  circumstances  must 
be  shown  from  which  it  may  be  inferred  that  the  prisoner,  in  assum- 
ing to  use  the  name,  acted  fraudulently.'  The  person  whose  name  is 
used  need  not  be  called  ;  see  the  cases  collected,  supra,  p.  5.  But  if 
there  be  more  than  one  person  who  might  be  meant,  it  is  necessary  to 
show,  either  directly  or  by  inference,  that  the  prisoner  did  not  use  the 
name  of  any  one  of  these  honestly.  Thus,  where  the  bill  had  been 
sent  to  one  P.,  the  payee  and  indorser,  an  intimate  friend  of  D.,  the 
drawer ;  but  it  never  came  to  his  hands,  and  it  was  proved  to  have 
*piQm  *^^^^^  uttered  by  the  prisoner  with  the  indorsement,  "William 
-•  Pearce,"  upon  it ;  Davis  was  not  called,  and  the  testimony  of 
Pearce  was  rejected  by  Adair,  S.,  recorder  ;  for  although  it  might  not 
be  his  handwriting,  yet  it  might  be  the  handwriting  of  a  William 
Pearce,  or  as  he  had  not  been  proved  to  be  the  person  intended  as  the 
payee  of  the  bill,  it  might  be  the  handwriting  of  the  William  Pearce 
to  whom  the  bill  was  made  payable.  The  prisoner  was  accordingly 
acquitted.     R.  v.   Sponsonby,  1  Leach,  332  ;    2  East,  P.  C.  996.     It 

'  It  is  error  to  charp;e  the  jury  that  defendant  cannot  be  convicted  nnlesH  by  proof 
by  an  eve-witness  to  the  signature  or  by  the  defendant's  own  admission.  Jordan  v. 
State,  52  Ala.  188. 


FORGERY.  751 

has  been  observed  upon  this  case,  that  it  may  be  doubted  whether  the 
fact  of  this  William  Pearce  being  an  intimate  acquaintance  and  corres- 
pondent of  the  drawer,  and  no  evidence  being  given  of  the  existence 
of  any  other  William  Pearce,  to  whom  it  might  be  su})j)osc(l  that  the 
bill  was  made  payable,  was  not  sufficient  evidence  of  the  identity  of 
the  payee.  2  East,  P.  C.  997.  The  decision  in  11.  v.  Sponsonljy  may 
be  considered  as  much  shaken  by  the  following  authority.  The  pris- 
oner was  indicted  for  forging  a  promissory  note,  purporting  to  be  made 
by  one  William  Holland  payable  to  the  prisoner  or  order.  It  ap- 
peared that  the  prisoner  had  offered  the  note  in  payment  to  the  prose- 
cutor, who  at  first  refused  to  take  it,  upon  which  the  prisoner  said  he 
need  not  be  afraid,  for  it  was  drawn  by  William  Holland,  who  kept 
the  Bull's  Head,  at  Tipton.  William  Holland  was  called,  and  proved 
that  it  was  not  his  handwriting.  He  stated  that  there  was  no  other 
publican  of  his  name  at  Tipton,  but  there  was  a  gentleman  of  the 
name  of  WiUiam  Holland  living  there  on  his  means,  who,  for  distinc- 
tion, was  allied  Gentleman  Holland.  The  latter  William  Holland  not 
being  called,  it  was  contended  for  the  prisoner  that  there  was  not  suf- 
ficient evidence  of  the  note  having  been  forged.  The  prisoner  being 
convicted,  on  a  case  reserved,  the  judges  held,  that  as  the  prisoner  had 
stated  that  William  Holland,  of  the  BidUs  Head,  was  the  maker  (and 
from  being  payee  of  the  note  he  must  have  known  the  particulars),  it 
was  sufficient  for  the  prosecutor  to  show  that  it  was  not  the  note  of 
that  William  Holland,  and  that  it  lay  upon  the  prisoner  to  prove,  if 
the  case  were  so,  that  it  was  the  genuine  note  of  another  William 
Holland.     R.  v.  Hampton,  1  Moo.  C.  C.  225.» 

But  that  the  party  who  is  called  is  the  same  person  as  the  party 
whose  name  is  forged  may  also  be  established  by  the  admission  of  the 
prisoner  himself,  as  in  the  following  case.  The  prisoner  was  charged 
with  forging  and  uttering  a  bill  of  exchange  in  the  name  of  Andrew 
Helme,  with  intent  to  defraud  one  Anthony,  and  also  with  forging  an 
indorsement  in  the  name  of  John  Sowerby,  on  a  bill  purporting  to  be 
drawn  by  the  said  A.  Helme,  with  the  like  intent.  Some  letters 
written  by  the  prisoner,  after  his  apprehension,  to  A.  Plelme,  who  was 
the  prisoner's  uncle,  were  produced,  from  which  it  clearly  appeared 
that  the  name  of  A.  Helme  was  forged.  In  the  same  manner  the 
forgery  of  Sowerby's  name  appeared,  and  that  he  was  the  son  of  a 
person  of  the  same  name  at  Liverpool.  A  witness  proved  that  the 
prisoner  offered  him  the  bill  in  question  with  the  indorsement  upon 
it,  informing  him  that  A.  Helme  was  a  gentleman  of  credit  at  Liver- 
pool, and  the  indorser  a  cheesemonger  there  who  had  received  the  bill 
in  payment  for  cheeses.  Sowerby,  the  father,  was  then  called,  who 
swore  that  the  indorsement  was  not  his  handwriting ;  that  he  knew 
of  no  other  person  of  the  same  name  at  Liverpool ;    that  his  son 

^  Evidence  that  the  prisoner  uttered  as  genuine  what  purported  on  its  face  to  be  a 
bank-note,  is  competent  proof  that  it  was  a  bank-note,  though  it  is  not  otherwise 
shown  tliat  such  a  bank  existed.  United  States  v.  Foye,  1  Curt.  C.  C.  3()4.  In  a 
prosecution  for  uttering  a  forged  bank-note  of  the  Bank  of  Dehiware,  in  Pennsyl- 
vania, the  existence  of  such  a  bank  may  be  proved  by  parol.  Cady  v.  Commonwealth, 
10  Gratt.  776.     S. 


752  FORGERY. 

had  been  a  cheesemonger  there,  but  liad  left  that  town  four  months 
before,  and  was  gone  to  Jamaica,  and  that  the  indorsement  Mas  not 
j^P-f  -|-|  *in  his  handwriting.  It  was  objected  that  Helme,  the  drawer, 
-^  was  not  called  to  prove  what  Sowerby,  the  payee,  was  ;  but  the 
prisoner  was  convicted.  The  judges,  on  a  case  reserved,  held  the  con- 
viction right.  They  said,  the  objection  supposed  that  there  was  a  gen- 
uine drawer,  who  ought  to  have  been  called,  but  to  this  there  were  two 
answers,  1st,  that  the  drawei*'s  name  was  forged,  which  the  prisoner 
himself  had  acknowledged  ;  and  2ndly,  that  the  prisoner  himself  had 
ascertained  who  was  intended  by  the  John  Sowerby,  whose  indorse- 
ment was  forged,  for  he  represented  him  as  a  cheesemonger  at  Liver- 
pool, and  that  he  meant  young  Sowerby  appeared  from  his  mentioning 
his  mother;  and  it  appearing  not  to  be  young  Sowerby's  hand- 
writing, the  proof  of  the  forgery  was  complete.  E,.  v.  Downes,  2  East, 
P.  C.  997. 

If  the  false  assertion  on  which  the  charge  of  forgery  is  founded  be 
the  use  of  a  fictitious  name,  the  evidence  that  will  be  necessary  will 
depend  much  on  the  particularity  with  which  the  fictitious  person 
is  described.  In  order  to  prove  that  the  name  "  Samuel  Knight, 
Market-place,  Birmingham,"  was  fictitious,  the  prosecutor  was  called, 
and  stated  that  he  went  twice  to  Birmingham  to  make  inquiries,  and 
inquired  at  a  bank  there,  and  at  a  place  where  the  overseers  usually 
met ;  and  that  he  also  had  made  inquiries  at  Nottingham,  without 
success.  The  prosecutor  was  a  stranger  in  both  of  these  towns.  It 
was  objected  for  the  prisoner,  that  this  evidence  was  not  sufficient ; 
that  in  the  case  of  a  prosecution  at  the  instance  of  King's  College,  in 
order  to  prove  a  certain  name  fictitious,  the  twopenny  postman  and 
police  officer  of  the  district  were  called.  The  judges  at  the  Old  Bailey 
(Park  and  Parke,  JJ.,  and  Bolland,  B.)  were  of  opinion,  that  there 
was  evidence,  though  not  satisfactory,  to  go  to  the  jury,  not  being 
the  usual  evidence  given  on  such  occasions,  but  that  it  was  for  the 
jurv  to  say  whether  it  was  sufficient.  The  jury  found  the  prisoner 
not  guilty.  R.  v.  King,  5  C.  &  P.  123,  2-1  E.'C.  L.  Upon  an  in- 
dictment for  uttering  a  forged  cheque  upon  Jones  Loyd  &  Co.,  bankers, 
purporting  to  be  drawn  by  G.  Andrews,  it  was  held  sufficient  ^^rimd 
facie  evidence  of  the  drawer's  name  being  fictitious  to  call  a  clerk  of 
the  bankers,  who  stated  that  no  person  of  that  name  kept  an  account 
with,  or  had  any  right  to  draw  cheques  on,  their  house.  R.  v.  Back- 
ler,  5  C.  &  P.  118,  24  E.  C.  L. ;  P.  v.  Brannan,  6  C.  &  P.  320,  25 
E.  C.  L.' 

Form  of  indictment.  A  material  alteration  in  the  form  of  indict- 
ments for  forgery  was  made  by  the  14  &  15  Vict.  c.  100,  s.  8,  and  is 
continued  by  the  24  &  25  Vict.  c.  98,  s.  44,  supra,  p.  560. 

^  Where  the  prosecution  lias  introduced  evidence  that  the  names  to  a  bond  to  dis- 
solve an  attachment  are  fictitious,  and  that  the  persons  could  not  he  found,  tlie  de- 
fendant should  be  allowal  to  show  that  the  prosecutintj  officer  had  ojienly  threatened 
to  prosecute  these  persons  for  perjury,  and  that  they  had  lied  the  state.  Common- 
wealth i.  Coatello,  liy  Mass.  214. 


FORGERY.  753 

The  nature  of  the  forged  instrument  must  be  stated  in  the  indict- 
ment ;  R.  V.  Wilcox,  Russ.  &  Ry.  50 ;  and  the  proof  must  correspond 
with  such  statement.  But  any  immaterial  variance  would  be  amended, 
Stat.  14  tS  15  Vict.  c.  100,  si!  1. 

At  common  law  the  forged  instrument  miglit  be  described  by  its 
purport,  as  a  paper  writing  purporting  to  be  the  i)articular  instrument 
in  question.  2  East,  P.  C.  980.  And  now  by  the  24  &  25  Vict.  c.  98, 
s.  42,  replacing  the  14  &  15  Vict.  c.  100,  s.  4  {supra  p.  500),  it  is 
sufficient  to  describe  any  instrument  by  any  name  or  designation  by 
which  the  same  may  be  usually  known,  or  by  the  purport  thereof, 
without  setting  out  any  copy  or  fae-slmile  thereof.  And  in  the  24  & 
25  Vict.  c.  98,  s.  43  (supra,  p.  560),  there  is  a  similar  provision  with 
respect  to  indictments  for  engraving,  etc.  Where  in  one  count  the 
instrument  was  described  as  purporting  to  be  a  bank  note,  the  court, 
*being  of  opinion  that  it  did  not  on  the  face  of  it  purport  to  be  p^ ^^.^ 
such,  held  that  the  count  could  not  be  supported,  and  that  the  •-  '  "* 
representation  of  the  prisoner  at  the  time  he  passed  it  off  as  such,  could 
not  vary  the  purport  of  the  instrument  itself.  R.  v.  Jones,  2  East,  P. 
C  883,  981.  Where  a  receipt  was  signed  "C  Oilier,"  and  the  indict- 
ment stated  it  as  purporting  to  be  signed  by  Christopher  Oliver,  the 
Court  (consisting  of  Heath  and  Lawrence,  JJ.,  and  Thompson,  B.) 
were  inclined  to  think  there  was  no  absolute  repugnance  in  the 
statement,  and  they  reserved  the  case  for  the  judges,  but  no  opinion 
was  ever  given.  R.  v.  Reeves,  2  Leach,  808,  814 ;  2  East,  P.  C. 
984  (7iy 

Where  a  fictitious  signature  is  stated,  it  should  be  described  as  p?tr- 
porting  to  be  the  signature  of  the  real  party.  Thus,  where  the  instru- 
ment was  described  as  "  a  certain  bill  of  exchange,  requiring  certain 
persons  by  the  name  and  description  of  Messrs.  Down,  etc.,  to  pay  to 
the  order  of  R.  Thompson  the  sum,  etc.,  and  signed  by  Henry 
Hutchinson,  for  T.  G.  T.  and  H.  Hutchinson,  etc.,  which  bill  is  as 
follows,"  etc.,  and  it  appeared  in  evidence  that  the  signature  to  the 
bill,  "  Henry  Hutchinson,"  was  a  forgery,  it  was  objected  that 
the  indictment  averring  it  to  have  been  signed  by  him  and  not 
merely  that  it  purported  to  be  signed  by  him,  which  was  a  sub- 
stantial  allegation,  was   disproved,   and   so   the  judges   held,   on  a 

^  An  indictment  for  forgery  must  set  out  the  tenor  of  the  instrument  forged.  Gus- 
tin's  Case,  2  South.  744.  But  if  tlie  instrument  be  lost,  or  in  the  hands  of  defendant, 
it  may  show  the  excuse  and  set  forth  the  instrument  in  general  terms.  People  v. 
Kingsley,  2  Cow.  522.  As  to  proof  of  forgery  without  producing  the  writing,  see 
Commonwealth  v.  Hutchinson,  1  Mass.  7  ;  Commonwealth  v.  Snell,  3  Jd.  82  ;  2  Russell, 
359,  n.  1.  It  is  not  necessary  to  set  forth  the  marks  and  ciphers,  ornaments  or  mot- 
toes on  bank  notes.  People  7'.  Franklin,  3  Johns,  299;  Commonwealtli  v.  Searle,  2 
Binn.  332.  See  Commonwealth  v.  Parmenter,  5  Pick.  279.  It  is  not  necessary  to  set 
out  the  numbers,  vignettes,  mottoes,  and  devices,  or  the  words  and  figures  in  the  mar- 
gin which  constitute  no  part  of  tlie  contract  of  the  instrument.  Grifiin  r.  State,  14  O. 
St.  55.  In  an  indictment  for  forgery,  charging  that  the  same  consisted  in  the  altera- 
tion of  a  true  instrument,  the  rule  that  the  forged  instrument  must  be  set  out  in 
words  and  figures  will  govern.  State  v.  Bryant,  17  N.  H.  323.  An  indictment  upon 
a  lost  paper  which  it  is  avowed  was  a  forgery,  should  set  out  the  substance  and  effect 
of  the  instrument ;  that  the  court  may  see  that  it  was  such  an  instrument  that  the 
forgeiy  of  it  would  constitute  a  crime.  Wallace  v.  People,  27  111.  45.  S. 
48 


754  FORGERY. 

reference  to  them  after  conviction.  R.  v.  Carter,  2  East,  P.  C. 
985. 

A  bank  post  bill  must  not  be  described  as  a  hill,  of  exchange,  but  it 
is  sufficiently  described  by  the  designation  of  a  bank  bill  of  exchange. 
R.  V.  Birkett,  Russ.  &  Ry.  251. 

Where  an  indictment  for  forgery  charged  that  the  prisoner  "  did 
forge  a  certain  promissory  note  for  the  payment  of  50/.,"  without 
stating  it  to  be  of  any  value  ;  Patteson,  J.,  said  that  the  court  must 
take  judicial  notice  of  what  a  promissory  note  is,  and  held  the  de- 
scription to  be  sufficient.  R.  v.  James,  7  C.  &  P.  553,  32  E.  C.  L. 
With  reference  to  this  statute,  it  was  held  that  an  instrument  payable 
to  tlic  order  of  A.,  and  directed  "  Messrs.  P.  &  Co.,  bankers,"  may  be 
described  as  a  bill  of  exchange;  R,  v.  Smith,  2  Moo.  C.  C.  295;  that 
"  a  deed  purporting  to  be  a  lease  of  certain  premises,"  is  a  sufficient 
description;  R.  v.  Davies,  2  Moo.  C.  C.  177  ;  so  "a  request  for  the 
delivery  of  goods  ;"  R.  v.  Robson,  2  Moo.  C.  C.  182  ;  that  the  instru- 
ment may  be  described  as  a  deed,  without  assuming  that  it  is  one  which 
may  be  the  subject  of  larceny  ;  R.  v.  Collins,  2  M.  &  Rob.  461  ;  that 
an  indictment  charging  that  the  prisoner  "  did  forge  a  writing  as  a 
certificate  of  W.  N.  with  intent  to  deceive  and  defraud  W.  P.  and 
others,"  was  good.     R.  v.  Toshack,  1  Den.  C.  C.  492. 

If  an  instrument  is  set  out  in  full  in  the  indictment,  the  description 
of  its  legal  character  would  appear  to  be  surplusage.  Thus  in  R.  v. 
Williams,  2  Den.  C.  C.  R.  61 ;  20  L.  J.,  M.  C.  106,  the  prisoner  was 
indicted  for  forging  a  certain  warrant  order  and  request  in  the  words, 
etc.,  following  :  "  Please  to  send  by  bearer  a  quantity  of  basket  nails 
and  clasps  for  E.  Lloyd ;"  it  was  proved  to  be  only  a  request.  Pol- 
lock, C.  B.,  in  delivering  the  judgment  of  the  court,  said,  "  the  case 
has  stood  over  to  enable  the  court  to  see  a  copy  of  the  indictment. 
The  judges  find  that  the  instrument  was  set  out  in  hac  verba,  and 
therefore  the  only  ground  of  doubt  being  removed,  the  conviction 
must  be  affirmed." 

It  may  be  remarked,  however,  that  here  the  proper  description  was 
5^p.qo-|  *used,  but  something  was  added.  In  R.  v.  Hunter,  Russ  &  Ry. 
-I    511,  where  an  instrument  was  set  out  in  the  following  form: 

"Two  months  after  date,  pay  to  Mr.  B.  H.,  or  order,  the  sum  of 
28?.  15s.,  value  received.  "John  Jones. 

"  At  Messrs.  Spooner  &  Co.'s, 
"  Bankers,  London," 

which  in  the  indictment  was  called  a  promissory  note,  the  judges  held 
that  the  variance  was  fatal,  and  the  conviction  wrong.  The  indict- 
ment w^ould  now,  of  course,  be  amended. 

It  will  be  no  variance,  if  it  appear  that  the  instrument  which  is  de- 
scribed in  the  indictment  as  a  forged  instrument,  was  originally  a  gen- 
uine one,  but  that  it  has  been  fraudulently  altered  by  the  prisoner  j 
for  every  alteration  of  a  true  instrument  for  a  fraudulent  purpose 
makes  it,  when  altered,  a  forgery  of  the  whole  instrument.     R.  v. 


FORGERY.  755 

Teague,  2  East,  P.  C.  979.  Tims  wliere  the  prisoner  altered  a  figure 
of  2  in  a  bank  note  into  5,  the  judges  agreed  that  it  was  forging  and 
counterfeiting  a  bank  note,  forgery  being  the  alteration  of  a  deed  or 
writing  in  a  material  part  to  the  prejudice  of  another,  as  well  as  when 
the  whole  deed  or  writing  is  forged.  R.  v.  Dawson,  2  East  P.  C. 
978.  In  practice,  however,  forgeries  of  this  kind  are  stated,  in  one 
count  at  least,  as  alterations.  2  East,  P.  C.  986  ;  2  Russ.  on  Cri.  707 
5th  ed.  ' 

The  power  of  amendment  given  by  the  14  &  15  Vict.  c.  100  s.  1 
renders  these  decisions  of  much  less  importance  than  formerly. 

Proof  with  regard  to  principals  and  accessories.  Although,  in 
general,  it  is  necessary,  in  order  to  render  a  party  guilty  as  principal 
in  an  offence,  that  he  should  have  been  present  at  the  commission  of 
the  complete  act,  yet  it  is  otherwise  in  forgery,  where  a  person  may 
incur  the  guilt  of  a  principal  offender  by  bearing  a  part  only  in  the 
committing  of  the  act,  and  in  the  absence  of  the  other  parties.  Thus 
where  the  prisoner  impressed  the  water-marks,  the  date,  line,  and 
number,  on  forged  bank  notes,  and  the  other  requisites  were  added 
at  different  times,  and  by  different  parties,  not  in  the  presence  of  the 
prisoner ;  on  conviction,  the  judges  were  of  opinion  that  the  convic- 
tion was  right ;  that  each  of  the  offenders  acted  in  completing  some 
part  of  the  forgery,  and  in  pursuance  of  the  common  plan  each  was  a 
principal  in  the  forgery,  and  that  though  the  prisoner  was  not  present 
when  the  note  was  completed  by  the  signature,  he  was  equally  guilty 
with  the  others.  R.  v.  Bingley,  Russ.  &  Ry.  446.  Nor  does  it  make 
any  distinction  in  the  case,  that  the  prisoner  was  ignorant  of  those 
who  were  to  effect  the  other  parts  of  the  forgery ;  it  is  sufficient  to 
know  that  it  is  to  be  effected  by  somebody.  R.  v.  Kirkwood,  1  Moo. 
C.  C.  304 ;  R.  V.  Dade,  Id.  307. 

But  where  three  persons  were  jointly  indicted  under  the  11  Geo.  4 
&  1  Will.  4,  c.  6Q,  s.  19  (repealed),  for  feloniously  using  plates  con- 
taining impressions  of  foreign  notes,  it  was  held  by  Littledale,  J.,  that 
the  jury  must  select  some  one  particular  time  after  all  three  had 
become  connected,  and  must  be  satisfied,  in  order  to  convict  them, 
that  at  such  time  they  were  all  either  present  together  at  one  act  of 
using,  or  assisted  in  such  one  act,  as  by  two  using  and  one  Avatching 
at  the  door  to  prevent  the  others  being  disturbed,  or  the  like ;  and 
that  it  was  not  sufficient  to  show  that  the  parties  were  general  dealers 
*in  forged  notes,  and  that  at  different  times  they  had  singly  r^ic^qj^ 
used  the  plates,  and  were  individually  in  possession  of  forged  *- 
notes  taken  from  them.     R.  v.  Harris,  7  C.  &  P.  416,  132  E.  C.  L. 

Where  three  prisoners  were  indicted  under  the  same  section  for  felo- 
niously engraving  a  promissory  note  of  the  Emperor  of  Russia,  and 
it  appeared  that  the  plates  were  engraved  by  an  Englishman,  who  was 
an  innocent  agent,  and  two  of  the  prisoners  only  were  present  at  the 
time  when  the  order  was  given  for  the  engraving  of  the  plates ;  but 
they  said  they  were  employed  to  get  it  done  by  a  third  person,  and 
there  was  some  evidence  to  connect  the  third  prisoner  with  the  other 


756  FORGERY. 

two  in  subsequent  parts  of  tlie  transaction ;  it  was  lield  that,  in  order 
to  find  all  three  guilty,  the  jury  must  be  satisfied  that  they  jointly 
employed  the  engraver,  but  that  it  was  not  necessary  that  they  should 
all  be  present  when  the  order  was  given,  as  it  would  be  sufficient  if 
one  first  communicated  with  the  other  two,  and  all  three  concurred  in 
the  eraplovment  of  the  engraver.  R.  v.  Mazeau,  9  C.  &  P.  676,  38 
E.  C.  L.  {  2  Russ.  on  Cri.  691,  5th  ed. 

With  regard  to  the  offence  of  uttering  forged  instruments,  it  is  neces- 
sary, in  order  to  render  a  party  guilty  as  principal,  that  he  should  have 
been  present.  R.  v.  Soares,  Russ.  &  Ry.  25  ;  2  East,  P.  C.  974,  ante, 
p.  414.  At  the  time  of  uttering  forged  orders  for  the  payment  of 
money  and  obtaining  goods  from  a  shop  by  means  of  such  orders,  two 
prisoners  remained  outside  the  shop  in  which  the  third  prisoner  uttered 
the  orders,  and  assisted  him  in  taking  away  the  goods.  All  three 
prisoners  were  held  to  be  properly  convicted  for  uttering  the  orders. 
R.  V.  Vanderstein,  10  Cox,  C.  C.  R.  (Irish),  177.  Where  a  wife, 
with  her  husband's  knowledge,  and  by  his  procurement,  but  in  his 
absence,  uttered  a  forged  order  and  certificate  for  the  payment  of 
prize-money,  it  was  held  by  the  judges,  that  the  presumption  of  coer- 
cion on  the  part  of  the  husband  did  not  arise ;  that  she  might  be  in- 
dicted as  principal,  and  her  husband  as  accessory  before  the  fact.  R.  v. 
Morris,  Russ.  &  Ry.  270;  2  Leach,  1096.  So  an  assent  afterwards 
does  not  render  the  party  guilty  as  a  principal.  1  Hale,  P.  C.  684 ; 
2  East,  P.  C  973.  But  in  forgery  at  common  law,  which  is  a  misde- 
meanor, as  in  other  cases  of  misdemeanor,  those  who,  in  felony,  would 
be  accessories,  are  principals.     2  East,  P.  C.  973. 

Proof  of  guilty  knowledge.  Where  the  prisoner  is  charged  with 
uttering  or  putting  off  a  forged  instrument,  knowing  it  to  be  forged, 
evidence  of  that  guilty  knowledge  must  be  given  on  the  part  of  the 
prosecution  ;  and  for  that  purpose  the  uttering  or  having  possession  of 
similar  forgeries  will  be  admissible.  Most  of  the  cases  upon  this  sub- 
ject have  already  been  stated.     Ante,  p.  95. 

On  an  indictment  for  forging  and  uttering  a  forged  bill,  a  letter 
written  by  the  prisoner,  after  he  was  in  custody,  to  a  thii'd  party  say- 
ing that  such  party's  name  is  on  another  bill,  and  desiring  him  not 
to  say  that  the  latter  bill  is  a  forgery,  is  receivable  in  evidence  to 
show  guilty  knowledge,  but  the  jury  ought  not  to  consider  it  as  evi- 
dence that  the  other  bill  is  forged,  unless  such  bill  is  produced  and 
the  forgery  of  it  proved  in  the  usual  way.  Per  Coleridge,  J., 
R.  V.  Forbes,  7  C.  &  P.  224,  32  E.  C.  L.  So  it  was  held  by 
Patteson,  J.,  that  evidence  of  what  the  prisoner  said  respecting 
other  bills  of  exchange,  which  are  not  produced,  is  not  admissible. 
R.  V.  Cooke,  8  C.  &  P.  586,  34  E.  C.  L.  The  case  of  R.  v. 
Cooke  was  doubted  by  Crompton,  J.,  in  R.  v.  Brown,  2  F.  &  F. 
559,  where  it  was  proposed  to  put  in  evidence  statements 
j^p.qp-1  *made  by  the  prisoner  with  reference  to  other  notes  supposed 
-■  to  be  forged.  There  seems  to  be  some  doubt  as  to  what  is  the 
mode  of  proving  the  other  instruments  to  be  forgeries.     See  R.  v. 


FORGERY.  757 

Moore,  1  F.  <&  F.  73.  As  to  the  proof  of  a  guilty  knowledge  gen- 
erally, see  R.  V.  Francis,  L.  R.  2  C.  C.  128  ;  43  L.  J.,  M.  C.  <J7 ;  ante, 
pp.  101,  510,  and  supra,  p.  94. 

Venue.  It  was  formerly  necessary  to  lay  the  venue  in  the  county 
where  the  forgery  was  committed  ;  and  as  it  was  frequently  difficult 
to  procure  direct  proof  of  the  act  of  forgery,  much  inconvenience  was 
occasioned ;  see  2  Russ.  Cri.  710,  5th  ed.^  But  this  difliculty  has 
been  removed  by  the  11  Geo.  4  &  1  Will.  4,  c.  66,  s.  24,  which  ])ro- 
vided  that  the  prisoner  might  be  tried  where  he  was  apprehended. 
This  provision  is  now  replaced  by  the  24  &  25  Vict.  c.  98,  s.  41,  which 
is  similar  in  its  terms.     Seesupra,  p.  560. 

Under  the  11  Geo.  4  &  1  Will.  4,  c.  Q6,  s.  24  (repealed),  Patteson, 
J.,  held  it  to  be  sufficient  to  prove  that  the  party  was  in  custody  in 
the  county  where  he  was  tried,  and  that  the  indictment  need  not  con- 
tain any  averment  of  his  being  in  custody  there.  R.  v.  James,  7  C. 
&  P.  553,  32  E.  C.  L.  So  in  R.  v.  Smythies,  1  Den.  C.  C.  R.  498  ; 
19  L.  J.,  M.  C.  31,  the  prisoner  was  not  shown  to  have  been  in  cus- 
tody till  he  surrendered  just  before  the  trial.  The  jury  found  that  he 
was  guilty  of  forging,  but  that  there  M'as  no  evidence  of  its  having 
been  done  within  the  jurisdiction  of  the  court ;  this  finding  was  held 
to  amount  to  a  conviction. 

On  an  indictment  for  forging  and  uttering  a  cheque,  it  appeared 
that  the  cheque  had  been  dated  abroad  and  drawn  by  the  prisoner 
abroad,  and  that  he  had  caused  it  to  be  presented  to  a  banker  abroad  : 
througli  whom  it  was  presented  in  this  country  without  a  stamp  ; 
held,  that  the  prisoner  might  be  convicted  of  uttering  in  this  country 
if  he  set  other  persons  in  motion  in  another  country  as  his  agents,  by 
whom  the  cheque  was  presented  in  this  country.  R.  v.  Taylor,  4  F. 
&F.  511. 

1  The  feet  of  forging  a  note  within  a  county  cannot  be  inferred  from  its  having 
been  uttered  therein.  Commonwealth  v.  Parmenter,  5  Pick.  279.  A  person  may  be 
guilty  of  forgery,  though  he  did  not  write  tlie  instrument  forged  in  the  county  in 
which  the  indictment  was  found,  if  he  altered  and  published  it  there.  McGuin  v. 
State,  37  Ala.  161.    S. 


758  FUEIOUS   DRIVING. 


*596]  *FURIOUS   DRIVING. 

This,  considering  the  probable  danger  to  the  lives  of  the  public, 
would  seem  to  be  an  indictable  offence  at  common  law  ;  Williams  v. 
E.  I.  Company,  3  East,  192 ;  and  now  by  the  24  &  25  Vict.  c.  100, 
s.  35,  replacing  the  1  Geo.  4,  c.  4,  "  Whosoever  having  the  charge  of 
any  carriage  or  vehicle,  shall  by  wanton  or  furious  driving  or  racing, 
or  other  wilful  misconduct,  or  by  wilful  neglect,  do  or  cause  to  be  done 
any  bodily  harm  to  any  person  whatsoever,  shall  be  guilty  of  a  mis- 
demeanor, and  being  convicted  thereof  shall  be  liable,  at  the  discretion 
of  the  court,  to  be  imprisoned  for  any  term  not  exceeding  two  years, 
with  or  without  hard  labor." 

Under  5  &  6  Will.  4,  c.  50,  s.  78,  it  was  held  that  a  person,  riding 
a  bicycle  on  a  highway,  may  be  summarily  convicted  of  furiously 
driving  a  "  carriage."  Taylor  v.  Goodwin,  4  Q.  B.  D.  228  ;  48  L. 
J.,  M.  C.  104. 

As  to  death  caused  by  negligent  driving,  see  pod,  tit.  "  Man- 
slaughter" and  "Murder." 


GAME,  759 


*GAME.  [*597 

PAGE 

Taking  or  killing  hares  or  rabbits  in  the  night 597 

Taking  or  destroying  game  or  rabbits  by  night       ....  697 

Power  to  apprehend  ofienders 598 

Limitation  of  time  for  prosecutions         .,...,  698 

Proof  of  previous  conviction «        ,  599 

Three  persons  entering  land  by  night  armed  in  pursuit  of  game  .  599 

Definition  of  night 599 

of  game 599 

Destroying  game  or  rabbits  on  a  public  road 599 

Proof  of  the  taking  or  killing 600 

entering  or  being  in  the  place  specified         .        .        .  600 
situation  and  occupation  of  the  land  where  the  offence 

was  committed 601 

that  the  prosecution  was  commenced  within  the  time  limited  602 

of  being  armed 602 

Joinder  of  otiences 603 

Apprehension  of  offenders ,        .        .  603 

All  offences  with  regard  to  game,  which  are  the  subject  of  indict- 
ment, are  statutable  offences,  not  known  to  the  common  law.  Such 
animals  being  jeraa  natu7'ce,  are  not,  in  their  live  state,  the  subjects  of 
larceny.      Vide  supra,  p.  526. 

The  principal  provisions  Avith  regard  to  offences  relating  to  game 
were  formerly  contained  in  the  7  &  8  Geo.  4,  c.  29,  s.  30 ;  the  9  Geo. 
4,  c.  69 ;  and  the  7  &  8  Vict.  c.  29.  The  7  &  8  Geo.  4,  c.  29,  s.  30, 
is  now  repealed,  and  a  similar  provision  is  substituted  by  the  24  &  25 
Vict.  c.  96,  s.  17. 

Taking  or  killing  hares  or  rabbits  in  the  night.  By  the  24  &  25 
Vict.  c.  96,  c.  17,  "  whosoever  shall  unlawfully  and  wilfully,  between 
the  expiration  of  the  first  hour  after  sunset  and  the  beginning  of  the 
last  hour  before  sunrise,  take  or  kill  any  hare  or  rabbit,  in  any 
warren  or  ground  lawfully  used  for  the  breeding  or  keeping  of  hares 
or  rabbits,  whether  the  same  be  inclosed  or  not,  every  such  offender 
shall  be  guilty  of  a  misdemeanor." 

Taking  or  destroying  game  or  rabbits  by  night.  By  the  9  Geo.  4, 
c.  69,  s.  1  (repealing  57  Geo.  3,  c.  90),  it  is  enacted,  that,  "  if  any 
person  shall,  after  the  passing  of  this  Act,  by  night,  unlawfully  take 
or  destroy  any  game  or  rabbits,  in  any  land,  whether  open  or  inclosed, 
or  shall  by  night  unlawfully  enter,  or  be  in  any  land,  whether  open 
or  inclosed,  with  any  gun,  net,  engine,  or  other  instrument  for  the 
purpose  of  taking  or  destroying  game  (which  word,  by  s.  13,  shall 
be  deemed  to  include  hares,  pheasants,  partridges,  grouse,  heath  or 
*moor  game,  black  game,  and  bustards),  such  offender  shall,  r^Kno 
upon  conviction  thereof  before  two  justices  of  the  peace,  be   L 


760  GAME. 

committed  for  the  first  offence  to  the  common  gaol  or  house  of  correc- 
tion, for  any  period  not  exceeding  three  calendar  months,  there  to  be 
kept  to  hard  labor,  and,  at  the  expiration  of  such  period,  shall  find 
sureties  by  recognizance,  or  in  Scotland,  by  bond  of  caution,  himself 
in  10/.,  and  two  sureties  in  61.  each,  or  one  surety  in  10/.,  for  his  not 
so  offending  again  for  the  space  of  one  year  next  following ;  and  in 
case  of  not  finding  such  sureties,  shall  be  further  imprisoned  and  kept 
to  hard  labor  for  the  space  of  six  calendar  months,  unless  such  sureties 
are  sooner  found ;  and  in  case  such  person  shall  so  offend  a  second 
time,  and  shall  thereof  be  convicted  before  two  justices  of  the  peace, 
he  shall  be  committed  to  the  common  gaol  or  house  of  correction,  for 
any  period  not  exceeding  six  calendar  months,  there  to  be  kept  to  hard 
labor,  and  at  the  expiration  of  such  period  shall  find  sureties  by 
recogrnizance  or  bond  as  aforesaid,  himself  in  20/.  and  two  sureties  in 
10/.  each,  or  one  surety  in  20/.  for  his  not  so  offending  again  for  the 
space  of  two  years  next  following,  and  in  case  of  not  finding  such 
sureties  shall  be  further  imprisoned  and  kept  to  hard  labor  for  the 
space  of  one  year,  unless  such  sureties  are  sooner  found ;  and  in  case 
such  person  shall  so  offend  a  third  time  he  shall  be  guilty  of  a  misde- 
meanor, and  being  .convicted  thereof  shall  be  liable,  at  the  discretion 
of  the  court,  to  be  transported  beyond  the  seas  for  seven  years,  or  to 
be  imprisoned  and  kept  to  hard  labor  in  the  common  gaol  or  house 
of  correction,  for  any  term  not  exceeding  two  years."  By  the  20  & 
21  Vict.  c.  3,  s.  2,  three  [now  five]  years  penal  servitude  is  substituted 
for  seven  years'  transportation. 

Power  to  apprehend  offenders.  By  s.  2,  "  where  any  person  shall 
be  found  upon  any  land,  committing  any  such  offence  as  is  hereinbe- 
fore mentioned,  it  shall  be  lawful  for  the  owner  or  occupier  of  such 
land,  or  for  any  person  having  a  right  of  free  warren  or  free  chase 
thereon,  or  for  the  lord  of  the  manor  or  reputed  manor,  wherein  such 
land  may  be  situate,  and  also  for  any  gamekeeper  or  servant  of  any 
of  the  persons  hereinbefore  mentioned,  or  any  person  assisting  such 
gamekeeper  or  servant,  to  seize  and  apprehend  such  offender  upon 
such  land,  or  in  case  of  pursuit  being  made  in  any  other  place  to 
which  he  may  have  escaped  therefrom,  and  to  deliver  him,  as  soon  as 
may  be,  into  the  custody  of  a  peace  officer,  in  order  to  his  being 
conveyed  before  two  justices  of  the  peace.  And  in  case  such  offender 
shall  assault  or  offer  any  violence  wath  any  gun,  crossbow,  firearms, 
bludgeon,  stick,  club,  or  any  other  offensive  weapon  wiiatsoever, 
towards  any  person  hereby  authorized  to  seize  and  apprehend  him, 
he  shall,  whether  it  be  his  first,  second,  or  any  other  offence,  be  guilty 
of  a  misdemeanor  ;  and  being  convicted  thereof  shall  be  liable,  at 
the  discretion  of  the  court  to  be  transported  beyond  the  seas  for 
seven  years,  or  to  be  imprisoned  and  kept  to  hard  labor  in  the 
common  gaol  or  house  of  correction,  for  any  term  not  exceeding  two 
years ;  and  in  Scotland,  whenever  any  person  shall  so  offend,  he  shall 
be  liable  to  be  punished  in  like  manner."  See  also  7  &  8  Viet.  c.  29, 
s.  1,  infra,  p.  599.     By  the  20  &  21  Vict.  c.  3,  s.  2,  three  [now 


GAME.  7G1 

five]  years'  penal  servitude  is  substituted  for  seven  years'  transporta- 
tion. 

tiimitation  of  time  for  prosecutions.    By  s.  4,  "  the  prosecution  for 
*every  offence  punishable  upon   indictment,  or  otherwise  than   r^rnq 
upon  summary  conviction,  by  virtue  of  this  Act,  shall  be  com-   ^  '^ 
menccd  within  twelve  calendar  months  after  the  commission  of  such 
offence." 

Proof  of  previous  conviction.  By  s.  8,  "every  conviction  under 
this  Act  for  a  second  offence,  the  convicting  justices  shall  return  the 
same  to  the  next  quarter  sessions  for  the  county,  riding,  division,  city, 
or  place  wherein  such  offence  shall  have  been  committed  ;  and  the  rec- 
ord of  such  conviction,  or  any  copy  thereof,  shall  be  evidence  in  any 
prosecution  to  be  instituted  against  the  party  thereby  convicted  for  a 
second  or  third  offence." 

Three  persons  entering  land  by  night  armed  in  pursuit  of  game. 

By  s.  9,  ''  if  any  persons  to  the  number  of  three  or  more  together, 
shall,  by  night,  unlawfully  enter  or  be  in  any  land,  whether  open  or 
inclosed,  for  the  purpose  of  taking  or  destroying  game  or  rabbits,  any 
such  person  being  armed  with  any  gun,  crossbow,  firearms,  bludgeon, 
or  any  other  offensive  weapon,  each  and  every  of  such  persons  shall 
be  guilty  of  a  misdemeanor,  and  being  convicted  thereof  before  the 
justices  of  gaol  delivery,  or  of  the  court  of  great  sessions  of  the  county 
or  place  in  which  the  offence  shall  be  committed,  shall  be  liable,  at  the 
discretion  of  the  court,  to  be  transported  beyond  the  seas  for  any  term 
not  exceeding  fourteen  years,  nor  less  than  seven  years,  or  to  be  im- 
prisoned and  kept  to  hard  labor  for  any  term  not  exceeding  three 
years."  By  the  20  &  21  Vict.  c.  3,  s.  2,  penal  servitude  is  substituted 
for  transportation. 

Definition  of  night.  By  s.  12,  "for  the  purposes  of  this  Act  the 
night  shall  be  considered,  and  is  hereby  declared  to  commence  at  the 
expiration  of  the  first  hour  after  sunset,  and  to  conclude  at  the  begin- 
ning of  the  last  hour  before  sunrise." 

Definition  of  game.  By  s.  13,  "for  the  purposes  of  this  Act  the 
word  'game'  shall  be  deemed  to  include  hares,  pheasants,  partridges, 
grouse,  heath  or  moor  game,  black  game,  and  bustards." 

Destroying  game  or  rabbits  on  a  public  road.     By  the  7  &  8 

Vict.  c.  29,  s.  1,  "from  and  after  the  passing  of  this  Act  (the  4th 
July,  1844)  all  the  pains,  punishments,  and  forfeitures  imposed  by  the 
9  Geo.  4,  c.  69,  upon  persons  by  night  unlawfully  taking  or  destroy- 
ing any  game  or  rabbits,  in  any  land,  open  or  inclosed,  as  therein  set 
forth,  shall  be  applicable  to,  and  imposed  upon  any  person  by  night, 
unlawfully  taking  or  destroying  any  game  or  rabbits  on  any  public 
road,  highway,  or  path,  or  the  sides  thereof,  or  at  the  opening,  outlets, 


762  GAME. 

or  gates  from  any  such  land  into  any  such  public  road,  highway, 
or  path,  in  the  like  manner  as  upon  any  such  land,  open  or  inclosed  ; 
and  it  shall  be  lawful  for  the  owner  or  occupier  of  any  land  adjoining 
either  side  of  that  part  of  such  road,  highway,  or  patli,  where  the 
offender  sliall  be,  and  the  gamekeeper  or  servant  of  such  owner  or 
occupier,  and  any  person  assisting  such  gamekeeper  or  servant,  and 
for  all  persons  authorized  by  the  said  Act  (the  9  Geo.  4,  c.  69)  to 
apprehend  any  offender  against  the  provisions  thereof,  to  seize  and 
apprehend  any  person  offending  against  the  said  Act  or  this  Act ;  and 
the  said  Act  and  all  the  powers,  provisions,  authorities  and  jurisdic- 
tions therein  or  thereby  contained  or  given,  shall  be  apj)licable  for 
♦fiom  *carrying  this  Act  into  execution  as  if  the  same  had  been 
-I   therein  specially  set  forth." 

Proof  of  the  taking  or  killing.  Under  the  5  Geo.  3,  c.  14  (24  & 
25  Vict.  c.  96,  s.  17),  it  was  held  not  to  be  necessary  to  give  evidence 
that  the  defendant  was  seen  in  the  act  of  taking  or  killing  the  hare, 
nor  to  prove  such  a  taking  as  would  constitute  larceny.  Thus,  where 
the  defendant  had  set  wires,  in  one  of  which  a  rabbit  was  caught,  and 
the  defendant,  as  he  was  about  to  seize  it,  was  stopped  by  the  keeper ; 
this  was  held  by  the  judges  to  be  a  taking  ;  the  word  taking  meaning 
catching y  and  not  taking  away.     R.  v.  Glover,  E-uss.  &  Ry.  269. 

Proof  of  the  entering  or  being  in  the  place  specified.  The 
prosecutor  must  show  that  at  least  three  persons  entered,  or  were  (the 
words  of  the  statute  are,  "shall  unlawfully  enter  or  be"),  by  night,  in 
the  place  specified.  It  will  not,  therefore,  be  necessary  to  show  that 
they  entered  by  night,  provided  they  be  in  the  place  within  the  hours 
meant  by  the  words  "by  night"  {ante,  p.  599).  The  indictment  must 
state  that  the  entry  and  arming  were  by  night.  Where  an  indictment 
stated  that  the  defendants  on,  etc.,  did  by  night  enter  divers  closes,  and 
were  then  and  there  in  the  closes  armed,  etc.;  the  judgment  was  re- 
versed, on  the  ground  that  the  indictment  did  not  contain  a  sufficient 
averment  that  the  defendants  were  by  night  in  the  closes  armed,  etc. 
Davies  v.  R.,  10  B.  &  C.  89,  21  E.  C.  L.;  see  also  R.  v.  Kendrick,  7 
C.  &.  P.  184,  32  E.  C.  L.;  R.  v.  Wilks,  Id.  811  ;  Fletcher  v.  Cal- 
throp,  6  Q.  B.  880,  51  E.  C.  L.  On  an  indictment  for  perjury  an  in- 
formation alleging  that  the  defendant  did  enter  and  was  on  certain  land 
there,  called  A.  close,  etc.,  for  the  purpose  of  taking  and  destroying 
game  contrary  to  the  statute,  etc.,  but  not  saying  "  for  the  purpose  of 
destroying  game  there"  was  held  to  be  sufficient  to  give  jurisdiction 
to  the  justices  before  whom  the  information  was  laid.  R.  v.  Western, 
L.  R.  i  C.  C.  R.  122  ;  37  L.  J.,  M.  C.  81.  It  is  not  necessary  to  give 
direct  evidence  that  the  men  were  on  the  land  without  the  permission 
of  the  occupier  or  landlord ;  the  jury  may  infer  that  they  were  there 
unlawfully,  from  their  conduct  and  other  circumstances.  R.  v.  Wood, 
Dears.  &  B.  C.  C.  1 ;  25  L.  J.,  M.  C.  96.  See  ante,  p.  6.  If  per- 
sons go  out  with  the  intention  of  taking  game  and  pass  through  a  close 
where  they  might  expect  to  find  game,  they  are  guilty  of  entering  that 


GAME,  763 

close  for  the  purpose  of  destroying  game  therein,  even  altliough  tliey 
pass  through  it  without  attempting  to  destroy  game.      Per  Willcs  J, 
in  R.  V.  Higgs  andOtliers,  10  Cox,  C.  C.  527. 

Where  only  one  defendant  was  seen  in  the  place  charged  in  tlie  in- 
dictment, the  others  being  in  a  wood  separated  therefrom  l)y  a  h'vAx 
road,  Patteson,  J.,  held  the  indictment  not  proved.  R.  v.  Dowscll  6 
C.  &  P.  398,  25  E.  C.  L.;  1  Russ.  Cri.  G34,  5th  cd.  In  R.  v.  Whit- 
taker,  1  Den.  C.  C.  R.  310,  however,  although  five  of  the  judges  were 
of  opinion  that,  to  constitute  a  misdemeanor  under  this  section,  the 
party  must  enter  into,  and  be  bodily  in  the  close  ;  and  that  if  three 
were  in  the  close  and  three  out,  the  latter  were  not  guilty;  and  that  as 
the  three  who,  in  that  case  entered,  could  not  be  ascei'taincd,  all  were  en- 
titled to  be  acquitted  ;  yet  seven  of  the  judges  held,  that  all  the  others 
who  were  aiding  and  assisting  those  who  entered  tiie  field^  Avere  guilty 
of  the  same  misdemeanor,  though  they  themselves  were  not  in  the 
field,  and  therefore  that  the  conviction  of  all  the  prisoners  was  good. 
*And  see  R.  v.  Scotton,  5  Q.  B.  493,  48  E.  C.  L.  In  R.  v.  ^^  . 
Whittaker,  a  particular  close  was  specified  in  the  indictment,  L 
but  in  the  subsequent  case  of  R.  v.  Uezzell  and  Others,  2  Den.  C.  C. 
R.  274;  20  L.  J.,  M.  C.  192;  1  Russ.  Cri.  636,  5th  ed.,  Campbell, 
C.  J.,  2  Den.  C  C.  P.  275,  observed  :  "  Some  confusion  seems  to  have 
arisen  in  this  matter,  from  not  attending  sufficiently  to  the  provisions 
of  the  act  of  parliament :  it  has  been  treated  as  though  the  word  close 
occurred  in  the  act,  whereas  it  only  specifies  '  any  land  whether  open 
or  inclosed ;'  a  practice  has  consequently  prevailed  of  naming  a  cer- 
tain close  in  the  indictment,  which  is  quite  needless ;"  and  Parke,  B., 
adverting  to  Mr.  Greaves'  note,  1  Russ.  4th  ed.  by  Greav.  655  note 
(o),  said  :  "  The  reasoning  appears  to  me  to  be  founded  on  the  assump- 
tion that  the  statute  provided  only  for  the  case  of  three  being  together 
in  one  and  the  same  piece  of  inclosed  land  if  the  land  was  inclosed,  or 
one  and  the  same  piece  of  land  if  it  was  open,  whereas  the  statute  con- 
tains no  such  provision."  In  R.  v.  Uezzell  and  Others,  therefore,  the 
prisoner  was  held  to  have  been  properly  convicted,  he  being  one  of  a 
party  of  three,  armed  with  guns,  one  of  whom  was  in  a  close  occupied 
by  G.  W.,  in  which  were  pheasants,  for  the  purpose  of  destroying 
game  there,  and  all  of  whom  were  found  to  have  been  in  another  ad- 
joining close  of  G.  W.,  in  which  there  were  not  any  pheasants, 
on  their  way  to  the  former  close ;  one  of  the  counts  of  the  indict- 
ment charging  the  prisoners  Avith  being  in  inclosed  land  occupied  by 
G.  W. 

Merely  sending  a  dog  to  drive  the  game  in  a  field  while  the  owner 
stands  in  the  road  is  not  an  entry  by  the  ^wner.  R.  v.  Nichless,  8 
Car.  &  P.  757,  34  E.  C.  L.;  R.  v  Pratt,  Dears.  C.  C.  502 ;  24  L.  J., 
M.  C.  113  ;  but  the  soil  of  the  road  frequently  belongs  to  the  owner 
of  the  adjoining  close,  and  in  that  case  perhaps  the  defendants  might 
be  convicted  though  they  never  left  the  road.  In  R.  v.  Pratt,  whei'c  the 
defendant  had  been  summarily  convicted  before  justices  for  an  offence 
under  the  1  &  2  Will.  4,  c.  32,  s.  30,  for  entering  and  being  upon 
land  in  pursuit  of  game,  the  conviction  was  upheld  under  similar  cir- 


764  GAME. 

ciimstances.     See  also  Pickering  v.  Riuld,  ante,  p.  367,  from  which  it 
appears  that  shooting  on  to  a  person's  land  would  be  an  entry. 

Proof  of  the  situation  and  occupation  of  the  land  where  the  of- 
fence was  committed.  Under  the  24  &  25  Vict.  c.  96,  s.  17,  it  must 
be  proved  tliat  the  oifence  was  committed  in  some  warren  or  ground 
lawfully  used  for  the  breeding  of  hares  or  rabbits.  That  is,  in  some 
place  which  is  either  a  warren,  or  which  is  similar  to  a  warren.  R.  v. 
Garratt,  6  C.  &  P.  369,  25  E.  C.  L. 

The  indictment  must  particularize,  in  some  manner,  the  place  in 
which  the  offence  was  committed  ;  for  being  substantially  a  local 
offence,  the  defendant  is  entitled  to  know  to  what  specific  place 
the  evidence  is  to  be  directed.  P.  v.  Ridley,  Puss.  &  P.  515.  "A 
certain  cover  in  the  parish  of  A."  is  too  general  a  description.  P.  v. 
Crick,  5  C.  &  P.  508,  24  E.  C.  L.  But  it  has  been  held  sufficient  by 
Gurney,  B.,  to  charge  entering  certain  lands  in  the  occupation  of  A.  B., 
without  specifying  whether  it  is  inclosed  or  not.  P.  v.  Andrews,  2 
Moo.  &  P.  37. 

AVhere  there  was  a  variance  between  the  allegation  of  the  occupation 
of  the  land,  and  the  proof  of  the  occupation,  Lindley,  J.,  held  that  the 
indictment  could  be  amended  if  the  prisoners  were  not  misled  thereby. 
P.  V.  Sutton,  13  Cox,  C.  C.  648. 

*fi09l  *Wiiere  the  indictment  alleged  an  entry  into  a  particular 
-I  close,  with  intent  then  and  there  to  kill  game,  it  was  held,  that 
the  intent  Avas  confined  to  the  killing  of  game  in  that  particular  place. 
P.  V.  Barham,  1  INIoo.  C.  C.  151  ;  P.  v.  Capewell,  5  C.  &  P.  549,  24 
E.  C.  L.;  P.  V.  Gainer,  7  C.  &  P.  231,  32  E.  C.  L.  Where  it  appeared 
that  the  prisoners  were  in  Shutt  Leasowe,  a  place  named  in  the  indict- 
ment, and  which  adjoined  Short  Wood,  and  were  apparently  going  to 
the  wood,  Patteson,  J.,  said,  "  The  intent  was  evidently  to  kill  game 
in  the  wood,  into  which  none  of  the  parties  ever  got  for  that  purpose ; 
it  is  true  that  they  were  charged  with  being  in  Shutt  LcasoAve,  but 
they  had  no  intention  of  killing  game  there  ;  they  must  be  acquitted." 
P.  V.  Davis,  8  C.  &  P.  759,  34  E.  C.  L.  But  see  P.  v.  Higgs,  10 
Cox,  C.  C.  527,  ante,  p.  600. 

Proof  that  the  prosecution  was  commenced  within  the  time 
limited.  On  the  trial  of  an  indictment  under  the  9th  section  of  the 
9  Geo.  4,  c.  69,  for  night  poaching,  it  appeared  that  the  offence  was 
committed  on  the  12th  of  January,  1844,  the  indictment  was  preferred 
on  the  1st  of  March,  1845,  the  warrant  of  commitment  was  dated  on 
11th  December,  1844.  It  was  held  that  it  was  sufficiently  shown  that 
the  prosecution  was  commenced  "within  twelve  calendar  months  after 
the  commission  "  of  the  offence  within  the  4tli  section.  P,  i\  Austin, 
1  C.  &  K.  621,  47  E,  C.  L.  So  where  the  offence  was  committed  on 
the  4th  December,  1845,  the  information  and  warrant  were  on  the 
19th  December  :  one  prisoner  was  apprehended  on  the  5th  September, 
1846,  and  the  other  on  the  21st  of  October,  1846;  and  the  indi<'t- 
ment  was  preferred  on  the  5th  of  April,  1847 :  it  was  held  that  the 


GAME.  765 

prosecution  was  commenced  in  time.     R.  v.  Brooke,  1  Den.  C.  C.  R. 
217. 

In  order  to  prove  that  proceedings  were  commenced  within  the  pro- 
per time  a  warrant  for  defendant's  apprehension  was  produced,  but 
the  information  on  which  it  was  founded  was  not  put  in  evidence,  nor 
did  the  warrant  purport  to  be  grounded  on  an  information  in  writing, 
and  it  was  held  not  sufficient.  11.  v.  Parker,  L.  &  C.  459 ;  33  L.  J., 
M.  C.  135. 

Proof  of  being  armed.     Though  it  must  be  proved  under  the  9 
Geo.  4,  c.  69,  s.  9,  that  three  persons  at  least  were  concerned  in  tlic  com- 
mission of  the  offence,  the  statute  does  not  require  that  it  should  appear 
that  each  was  armed  with  a  gun  or  other  weapon,  the  words  being 
"  any  of  such  persons  being  armed,"  etc.,  and  this  was  held  upon  the 
former  statute,  57  Geo.  3,  c.  90,  which  did  not  contain  the  word  "  any." 
R.  V.  Smith,  Russ.  &  Ry.  386.     It  is  not  necessary  that  the  gun  should 
be  found  upon  any  of  the  defendants.     The  prisoners  were  shooting  in 
a  wood  in  the  night,  and  the  flash  of  their  guns  was  seen  by  a  keeper ; 
but  before  they  were  seen  they  abandoned  their  guns,  and  were  caught 
creeping  away  on  their  knees.     Being  convicted,  the  judges  held  this 
a  being  "  found  armed  "  within  the  57  Geo.  3,  c.  90.     R.  v.  Nash, 
Russ.  &  Ry.  368.  See  also  R.  v.  Goodfellow,  1  C.  &  K.  724, 47  E.  C.  L.; 
1  Den.  C.  C.  R.  81,  where  it  was  held  (overruling  on  this  point  R.  v. 
Davis,  8  C.  &  P.  759,  34  E.  C.  L.)  that  if  one  of  a  party  of  three  or 
more    poaching  in  the  night-time  has  a  gun,  all  are  armed  within 
the    9  Geo.  4,    c.    69,  s.  9.      See    also    R.    v.    Whittaker,   1   Den. 
C.  C.  R.  310.     Where  several  go   out   together,   and    only  one  is 
armed,  without  the  knowledge  of  the  others,  the  latter  are  not  guilty 
within  the  statute.    R.  v.  Southern,  Russ.  &  Ry.  444.  It  must  appear 
*that  the  weapon  was  taken   out  with  the  intention  of  being   r^n^o 
unlawfully  used.     The  defendant  was  indicted  for  being  out  at   •- 
night  for  the  purpose  of  taking  game  armed  with  a  bludgeon.       It 
appeared  that  he  had  with  him  a  thick  stick,  large  enough  to  be  called 
a  bludgeon,  but  that  he  was  in  the  constant  habit  of  using  it  as  a 
crutch,  being  lame.     Taunton,  J.,  ruled,  that  it  was  a  question  for  the 
jury  whether  he  took  out  the  stick   with  the  intention  of  using  it  as 
an  offensive  weapon,  or  merely  for  the  purpose  to  which  he  usually 
applied  it.     The  defendant  was  acquitted.     R.  v.  Palmer,  1  Moo.  & 
Rob.  70 ;  see  also  R.  v.  Williams,  14  Cox,  C.  C.  59.     A  walking- 
stick  of  ordinary  size  was  ruled  to  be  an  offensive  weapon  within  the 
7  Geo.  2,  c.  21.      R.  v.  Johnson,  Russ.  &  Ry.  492.      The  jn-isoners 
were  indicted  for  entering  land  at  night  armed  with  bludgeons,  with 
intent  to  destroy  game  ;  there  was  also  a  count  for  a  common  assault. 
The  only  weapons  proved  to  have  been  used  by  the  prisoners  were 
sticks.     One  of  these  was  produced,  with  which  one  of  the  prisoners, 
on  being  attacked  by  the  gamekeepers,  had  defended  himself,  and 
knocked  the  gamekeeper  down.     The  stick,  however,  was  a  very  small 
one,  fairly  answering  the  description  of  a  common  walking-stick.    On 
its  being  objected  that  the'  stidi  could  not  be  considered  an  offensive 


766  GAME. 

weapon  within  the  statnte,  K.  v.  Johnson  was  cited  for  the  prosecution, 
and  it  was  contended  that  the  use  made  of  the  stick  by  the  prisoner 
showed  both  his  intention  and  the  nature  of  the  stick.  Gurney,  B., 
said  that  if  a  man  went  out  with  a  common  walking-stick,  and  there 
were  circumstances  to  show  that  he  intended  to  use  it  for  purposes 
of  offence,  it  might,  perhaps,  be  called  an  oifensive  weapon  within  the 
statute ;  but  if  he  had  it  in  the  ordinary  way,  and  upon  some  unex- 
pected attack  or  collision  was  provoked  to  use  it  in  his  own  defence, 
it  would  be  carrying  the  statute  somewhat  too  far  to  say  it  was  an 
offensive  weapon  within  the  meaning  of  the  statute.  The  prisoners 
were  convicted  of  a  common  assault  only.  R,.  v.  Fry,  2  Moo.  &  Rob. 
42;  11.  V.  Sutton,  13  Cox,  C.  C.  648.  Large  stones  are  offensive 
weapons  if  the  jury  are  satisfied  that  the  stones  are  of  a  description 
capable  of  inflicting  serious  injury  if  used  offensively,  and  that  they 
were  brought  and  used  by  the  defendants  for  that  purpose.  R.  v. 
Grice,  7  C.  &  P.  803,  32  E.  C.  L. 

Joinder  of  oflfences.  It  has  been  ruled  that  a  count  on  the  9  Geo. 
4,  c.  69,  s.  4,  may  be  joined  with  a  count  on  section  2,  and  with  counts 
for  assaulting  a  gamekeeper  in  the  execution  of  his  duty,  and  for  a 
common  assault.  R.  v.  Finacane,  5  C.  &  P.  551,  24  E.  C.  L.  Where 
a  prisoner  was  indicted  for  shooting  at  a  gamekeeper,  and  in  another 
indictment  for  night  poaching,  it  was  held  that  the  prosecution  need 
not  elect  between  the  two  indictments ;  the  offences  being  quite  dis- 
tinct, although  they  related  to  the  same  transaction.  R.  v.  Handley, 
Id.  565. 

Apprehension  of  offenders.  Although  the  9  Geo.  4,  c.  69,  s.  2,  is 
confined  to  the  oifences  specified  in  the  first  section,  yet  offenders, 
under  the  ninth  section  may  also  be  apprehended ;  for  though  a 
greater  punishment  is  inflicted  where  several  are  out  armed,  they  are 
still  guilty  of  an  offence  under  the  first  section.  R.  v.  Ball,  1  Moo. 
C.  C.  330. 

A  gamekeeper  and  his  assistants  warned  a  party  of  poachers  off 
his  master's  grounds,  and  followed  them  into  the  highway,  where  the 
*6041  *poachers  rushed  upon  the  keeper  and  his  men,  and  blows 
-•  ensued  on  both  sides.  After  the  keeper  had  struck  several 
blows,  a  shot  was  fired  by  the  prisoner,  one  of  the  party,  which  wounded 
the  prosecutor.  The  prisoner  was  indicted  under  the  9  Geo.  4,  c.  31, 
for  shooting  at  the  prosecutor  with  intent  to  kill,  etc.  It  was  urged 
for  the  prisoner  that  as  the  keeper  had  knocked  down  three  of  the 
men  before  the  shot  was  fired,  it  would  have  been  manslaughter  only 
if  death  had  ensued ;  but  the  judge  (Bayley,  B.)  was  of  opinion  that 
if  the  keeper  struck,  not  vindictively,  or  for  the  purpose  of  offence, 
but  in  self-defence  only,  and  to  diminish  the  violence  which  was  ille- 
gally brought  into  operation  against  him,  it  would  have  been  murder 
if  death  had  ensued.  He  told  the  jury  that  he  thought  that  the 
keeper  and  his  men,  even  if  they  had  no  right  to  apprehend,  had  full 
right  to  follow  the  prisoner  and  his   party,  in  order  to  discover  who 


GAME.  767 

they  were,  and  that  the  prisoner  and  his  party  were  not  warranted  in 
attempting  to  prevent  thera ;  and  that  if  they  had  attempted  to  a})pre- 
hend  them,  which,  however,  they  did  not,  he  thouglit  they  woiikl  have 
been  warranted  by  the  statute  in  so  doing.  The  prisoner  being  convicted, 
on  a  case  reserved,  the  judges  were  of  opinion  that  tiie  keeper  had 
power  to  apprehend,  and  that  notwithstanding  the  blows  given  by  tlie 
keeper,  it  woukl  have  been  murder  had  the  keeper's  man  died.  Id.  The 
rule  laid  down  in  the  above  case,  with  regard  to  blows  first  given  by 
the  keeper  in  self-defence,  was  soon  afterwards  recognized  in  another 
case.  A  gamekeeper  and  his  assistants  proceeded  to  apprehend  a  party 
of  poachers  whose  guns  they  heard  in  a  wood,  and  rushed  in  upon  the 
poachers,  who  ran  away,  and  then  ranged  themselves  in  a  row.  One 
of  the  poachers  exclaimed,  "The  first  man  that  comes  out,  I'll  be 
damn'd  if  I  don't  shoot  him."  The  poachers  then  ran  away  again 
followed  by  the  prosecutor.  At  length  several  of  the  poachers  stopped, 
and  the  prisoner,  one  of  them,  putting  his  gun  to  his  shoulder,  fired 
at  and  wounded  the  prosecutor ;  being  indicted  for  this  offence,  it  was 
objected  that  it  was  incumbent  on  the  prosecutor  to  have  given  notice 
to  the  poachers  by  calling  upon  them  to  surrender,  which  he  did  not 
appear  to  have  done;  the  judge  reserved  the  point,  and  the  judges 
were  all  of  opinion  that  the  circumstances  constituted  sufficient  notice, 
and  that  the  conviction  was  right.  R.  v.  Payne,  1  Moo.  C.  C.  378. 
Upon  an  indictment  for  murder,  it  appeared  that  the  deceased,  the 
servant  of  the  prosecutor,  attempted  to  apprehend  the  prisoner,  who 
was  poaching  at  night  in  a  wood.  The  prosecutor  was  neither  the 
owner  nor  occupier  of  the  wood,  nor  the  lord  of  the  manor,  having 
only  the  permission  of  the  owner  to  preserve  the  game  there.  The 
deceased  having  been  killed  by  the  prisoner  in  the  attempt  to  appre- 
hend him,  it  was  held  to  be  manslaughter  only.  R.  v.  Addis,  6  C.  &  P. 
388,  25  E.  C.  L.  Gamekeepers  who  were  out  watching  in  the  night 
heard  firing  of  guns  in  the  preserves  of  their  employer,  and  they 
waited  in  a  turnpike  road,  expecting  the  poachers  to  come  there,  which 
they  did,  and  an  affray  ensued  between  the  gamekeepers  and  the 
poachers.  Wightraan,  J.,  held,  that  if  the  gamekeepers  were  there  en- 
deavoring to  apprehend  the  poachers  they  were  not  justified  in  so 
doing.     R.  V.  Meadham,  2  C.  &  K.  633,  61  E.  C.  L. 

In  these  cases  a  question  frequently  arises  how  far  the  companions 
of  the  party  who  actually  comiuitted  the  offence  participate  in  the 
guilt.  The  prisoners  were  charged  with  shooting  James  Mancey,  with 
intent  to  murder.  It  appeared  that  the  prisoners,  each  having  a  gun, 
*were  out  at  night  in  the  grounds  of  C.  for  the  purpose  of  r*gQK 
shooting  pheasants,  and  the  prosecutor  and  his  assistants  went  •- 
towards  them  for  the  purpose  of  apprehending  them.  The  poachers 
formed  into  two  lines,  and  pointing  their  guns  at  the  keepers,  threat- 
ened to  shoot  them.  A  gun  was  fired,  and  the  prosecutor  was  wounded. 
Some  of  the  keepers  were  also  severely  beaten,  but  no  other  shot  was 
fired.  It  was  objected  that  as  there  was  no  common  Intent  to  commit 
any  felony,  Mancey  alone  could  be  convicted  ;  but  Vauglian,  B.,  said, 
"  I  am  of  opinion  that  when  this  act  of  parliament  (57  Geo.  3,  c.  90, 


768  GAME. 

repealed  by  9  Geo.  4,  c.  69)  empowered  certain  parties  to  apprehend 
persons  wlio  were  out  at  night  armed  for  the  destruction  of  game,  it 
gave  them  the  same  protection  in  the  execution  of  that  power  which 
the  law  affords  to  constables  in  the  execution  of  their  duty.  With 
respect  to  the  other  point,  it  is  rather  a  question  of  fact  for  the  jury ; 
still,  on  this  evidence  it  is  quite  clear  what  the  common  purpose 
was.  They  all  draw  up  in  lines,  and  point  their  guns  at  tlie  keepers, 
and  they  are  all  giving  their  countenance  and  assistance  to  the  one  who 
actually  fires  the  gun.  If  it  could  be  shown  that  either  of  them  sep- 
arated himself  from  the  rest,  and  showed  distinctly  that  lie  would  have 
no  hand  in  what  they  were  doing,  the  objection  would  have  much 
weight  in  it."  R.  v.  Edmeads,  3  C.  &  P.  390,  14  E.  C.  L.  So  when 
two  persons  had  been  seized  by  a  gamekeeper  and  his  assistants,  and 
while  standing  still  in  custody,  called  to  another  man,  who  was  coming 
up,  rescued  the  two  men,  and  beat  and  killed  one  of  the  keeper's  party, 
Vaughan,  B.,  ruled  that  all  the  three  men  were  equally  guilty,  though 
if  the  two  had  acquiesced  and  remained  passive,  it  would  not  have 
been  so.     R.  v.  Whithorne,  3  C.  &  P.  324,  14  E.  C.  L. 

If  a  person  having  only  a  right  of  shooting  over  land  empowers 
keepers  to  apprehend  parties  trespassing  in  search  of  game,  and  these 
parties,  on  an  attempt  being  made  to  apprehend  them,  resist,  no  of- 
fence is  committed  under  the  9  Geo.  4,  c.  69,  s.  2.  R.  v.  Wood,  1  F. 
&  F.  470  As  to  what  persons  are  entitled  to  seize  and  apprehend 
under  this  section,  see  Chit.  Stat.  Cr.  Law,  p.  140. 

By  the  Game  Amendment  Act,  1  &  2  Will.  4,  c.  32,  s.  31,  trespas- 
sers in  search  of  game  may  be  required  to  quit  the  land,  and  to  tell 
their  names  and  abodes,  and  in  case  of  refusal,  may  be  apprehended 
and  taken  before  a  justice.  See  R.  v.  Long,  7  C.  &  P.  314,  32  E.  C. 
L.  A  person  engaged  in  fox-hunting  is  not  justified  in  entering  the 
land  of  another  against  his  will.  Paul  v.  Summerhayes,  1  Q.  B.  D. 
9  ;  48  L.  J.,  M.  C.  33. 

See  also,  as  to  apprehending  generally  offenders  found  committing 
offences  in  the  night,  14  &  15  Vict.  c.  19,  s.  21,  ante,  p.  263. 

By  the  25  &  2(3  Vict.  c.  114,  s.  2,  it  is  provided  tliat  "It  shall  be 
lawful  for  any  constable  or  peace  officer  in  any  county,  borough,  or 
place  in  Great  Britain  and  Ireland,  in  any  highway,  street,  or  public 
place,  to  search  any  person  whom  he  may  have  good  cause  to  suspect 
of  coming  from  any  land  where  he  shall  have  been  unla^vfully  in 
search  or  pursuit  of  game,  or  any  person  aiding  or  abetting  such 
person,  and  having  in  his  possession  any  game  unlawfully  obtained, 
or  any  gun,  part  of  gun,  or  nets  or  engines,  used  for  the  killing  or 
taking  game,  and  also  to  stop  and  search  any  cart  or  other  conveyance 
in  or  upon  which  such  constable  or  peace  officer  should  have  good 
cause  to  suspect  that  any  such  game  or  any  such  article  or  thing  is 
being  carried  by  such  person,  and  should  there  be  found  any 
game  or  any  such  article  or  thing  as  aforesaid  upon  such  person,  cart, 
*Rarl  *^^  other  conveyance,  to  seize  and  detain  such  game,  article,  or 
J  thing  and  such  constable  or  peace  officer  shall  in  such  case  ap- 
ply to  some  justice  of  the  peace  for  a  summons  citing  such  person 


GAME.  769 

to  appear  before  two  justices  of  the  peace  assembled  in  petty  ses- 
sions, as  provided  in  the  eighteenth  and  nineteenth  of  her  present 
Majesty,  chapter  one  hundred  and  twenty-six,  section  nine,  as  far 
as  regards  England  and  Ireland,  and  before  a  sheriif  or  any  two 
justices  of  the  peace  in  Scotland  ;  and  if  such  person  shall  Iiave 
obtained  such  game  by  unlawfully  going  on  any  land  in  search  or 
pursuit  of  game,  or  shall  have  used  any  such  article  or  thing  as 
aforesaid  for  unlawfully  killing  or  taking  game,  or  shall  have  been 
accessory  thereto,  such  person  shall,  on  being  convicted  thereof, 
forfeit  and  pay  any  sum  not  exceeding  five  pounds,  and  shall  for- 
feit such  game,  guns,  parts  of  guns,  nets  and  engines,  and  the  jus- 
tices shall  direct  the  same  to  be  sold  or  destroyed,  and  the  proceeds 
of  such  sale,  with  the  amount  of  the  penalty,  to  be  paid  to  the 
treasurer  of  the  county  or  borough  where  the  conviction  takes  place; 
and  no  person  who,  by  direction  of  a  justice  in  writing  shall  sell 
any  game  so  seized  shall  be  liable  to  any  penalty  for  such  sale ;  and  if 
no  conviction  takes  place,  the  game  or  any  such  article  or  thing  as 
aforesaid,  or  the  value  thereof,  shall  be  restored  to  the  person  from 
whom  it  had  been  seized." 

It  is  not  necessary  to  prove  from  what  particular  land  the  game 
was  taken.  Brown  v.  Turner,  13  C.  B.,  N.  S.  485  ;  Evans  v.  Botter- 
ell,  33  L.  J.,  M.  C.  50.  Under  this  section  a  policeman  has  no  power  to 
apprehend,  but  only  to  stop  and  search.  See  K.  v.  Spencer,  3  F.  &  F. 
854.  In  order  to  justify  a  policeman  in  stopping  and  searching, 
it  is  necessary  to  prove  the  existence  of  reasonable  grounds,  but  for 
this  purpose  general  evidence  of  bad  character  cannot  be  given.  R.  v. 
Spencer,  3  F.  &  F.  854.  It  seems,  however,  it  would  be  sufficient 
for  the  policeman  to  state  in  chief  that  he  had  reasonable  grounds, 
and  to  leave  it  to  the  defendant  to  inquire  into  the  nature  of  those 
grounds.  See  R.  v.  Tuberfield,  ante,  p.  265.  In  order  to  give  the 
magistrate  jurisdiction  the  game,  etc.,  must  be  found  by  the  constable  on 
the  person  of  the  accused  in  the  highway,  etc.  Clark  v.  Crowder  and 
Others,  38  L.  J.,  M.  C.  118. 


49 


770  GAMING. 


*607]  *GAMmG. 

Gaming,  says  Hawkins,  is  permitted  in  England,  upon  every  pos- 
sible subject,  excepting  where  it  is  accompanied  by  circumstances  re- 
pugnant to  morality  or  public  policy,  or  where,  in  certain  special  cases, 
it  is  restrained  by  positive  statutes.  Hawk.  P.  C.  b.  1,  c.  92,  s.  1. 
But  where  the  playing  is  from  the  magnitude  of  the  stake  excessive, 
and  such  as  is  now  commonly  understood  by  the  term  "  gaming,"  it  is 
considered  by  the  law  as  an  offence,  being  in  its  consequences  most 
mischievous  to  society.     1  Russ.  by  Greav.  4th  ed.  455.^ 

The  principal  statutory  provisions  against  gaming  were  contained  in 
the  9  Anne,  c.  14  (E.);  the  18  Geo.  2,  c.  34  (E.);  the  10  Will. 
3(1.);  and  the  11  Anne  (I.) ;  but  these  statutes,  with  regard  to 
the  punishment  of  gaming,  are  repealed  by  the  8  &  9  Vict.  c.  109,  s. 
15. 

By  the  seventeenth  section  of  the  latter  statute  (E.  &  I.),  which  is 
entitled  "  An  Act  to  amend  the  Law  concerning  Games  and  Wagers,'* 
"every  person  who  shall  by  any  fraud  or  unlawful  device  or  ill  prac- 
tice in  playing  at  or  with  cards,  dice,  tables,  or  other  games,  or  in 
bearing  a  part  in  the  stakes,  wagers,  or  adventures,  or  in  betting  on 
the  sides  or  hands  of  them  that  do  play,  or  in  wagering  on  the  event 
of  any  game,  sport,  pastime,  or  exercise  win  from  any  other  person  to 
himself,  or  any  other  or  others,  any  sum  of  money  or  valuable  thing, 
shall  be  deemed  guilty  of  obtaining  such  money  or  valuable  thing 
from  such  other  person  by  a  false  pretence,  with  intent  to  cheat  or  de- 
fraud such  person  of  the  same,  and  being  convicted  thereof  shall  be 
punished  accordingly."  Persons  playing  or  betting  in  the  street, 
highway,  or  other  open  or  public  place  or  open  place  to  which  the  pub- 

'  The  statute  against  gaming  "  at  any  faro  bank  or  at  any  other  table  of  the  same  or 
like  kind  under  any  denomination  whatsoever,"  includes  the  game  called  "Thimble 
or  Thimble  and  Balls."  State  v.  Red,  7  Rich.  8.  Playing  at  cards,  with  an  agree- 
ment that  the  losing  party  shall  pay  for  drinks  round,  the  same  being  called  for  and 
drunk  accordingly,  on  the  result  being  known,  constitutes  gambling.  State  ?'.  Leicht, 
17  la.  28.  Throwing  dice  to  determine  who  shall  pay  for  whiskey,  is  gaming.  Mc- 
Daniel  r.  Commonwealth,  6  Bush,  326.     S. 

An  indictment  for  illegal  gaming  must  charge  an  offence  specified  by  statute.  Wal- 
lace V.  State,  12  Tex.  App.  479.  It  is  not  necessary  to  particularize  with  whom  de- 
fendant played,  nor  for  what  amount.  Hinton  v.  State,  OS  Ga.  322.  It  is  sufficient  to 
specify  that  the  gaming  house  is  in  the  county  where  indictment  is  brought.  Dohme 
V.  State,  68  Ga.  339.  On  sufficient  description  of  the  character  of  the  game.  State 
V.  Kaufman,  59  la.  273 ;  Parker  v.  State,  13  Tex.  App.  213  ;  Pembcrton  v.  State, 
85  Ind.  507.  The  indictment  need  not  allege  that  the  house  is  a  public  place,  but 
evidence  of  playing  in  a  room  over  a  store  with  which  it  was  not  connected,  does  not 
sustain  an  indictment  charging  cardplaying  in  a  house  used  for  retailing  liquors. 
Watson  V.  State,  13  Tex.  App.  160.  The  words  "billiard  table"  in  the  Alabama 
code  covers  anv  table  on  which  billiards  or  a  kindred  game  can  be  played.  Sikes  v. 
State,  G7  Ala.  77. 


GAMING.  771 

lie  have  access,  etc.,  are  rogues  and  vagabonds,  see  36  &  37  Viet.  c. 
38.  A  railway  carriage  in  transit  on  a  railway  is  witliin  this  Act. 
Langrish  v.  Archer,  52  L.  J.,  M.  C.  47. 

It  must  be  proved  not  only  that  the  defendant  won  the  money,  but 
that  he  won  it  by  some  "fraud  or  unlawful  device  or  ill-])ractiee  "  R 
V.  Rogier,  1  B.  &  C.  272,  8  E.  C.  L.  "Tossing  with  coins"  for  a 
wager  is  within  the  Act,  8  &  9  Vict.  c.  109,  s.  17.  R.  v.  O'Connor, 
15  Cox,  C.  C.  R.  3.  It  seems  that  it  would  not  be  necessary  to  state 
in  the  indictment  the  name  of  the  person  from  whom  the  money  was 
won.     R.  V.  Moss,  1  Dears.  &  B.  C.  C.  205 ;  20  L.  J.,  M.  C.  9. 

Keeping  and  maintaining  a  common  gaming-house  for  lucre  and 
gain,  and  causing  and  procuring  idle  and  evil-disposed  persons  to  come 
there  and  play  for  large  sums  of  money,  is  an  indictable  offence  at 
common  law,  and  it  seems  that  an  indictment  for  such  an  ollence  merelv 
charging  the  defendant  with  keeping  a  common  gaming-house  would 
be  good.  R.  v.  Rogier,  supra.  R.  v.  Taylor,  3  B.  &  C.  502,  10 
E.  C.  L.  And  a  betting-house  would  probably  be  considered  to  be  a 
gaming-house.  See  post,  tit.  "  Nuisance."  As  to  what  is  a  gaming- 
house, see  8  &  d  Vict.  c.  109,  s.  2.  It  is  usual,  however,  to  resort  to 
summary  mode  of  procedure  given  as  to  betting-houses  by  the  16  & 
*17  Vict.  c.  119,  amended  by  37  Vict.  c.  15,  and  as  to  gaming-  ^^nf)c^ 
houses  generally  by  the  1 7  &  1 8  Vict.  c.  38  ;  and  see  post,  tit.  L 
"  Nuisance."  As  to  what  is  an  "  office  or  place  "  within  the  1 6  &  1 7  Vict, 
c.  119,  s.  2,  see  Shaw  v.  Morley,  L.  R.  3  Ex.  137 ;  37  L.  J.,  M.  C. 
105.  Bows  V.  Fenwick,  L.  R.  9  C.  P.  339  ;  43  L.  J.,  M.  C.  107  ; 
Doggett  V.  Catterns,  17  C.  B.  N.  S.  669,  112  E.  C.  L.;  Eastwood  v. 
Miller,  L.  R.  9  Q.  B.  440 ;  43  L.  J.,  M.  C.  139 ;  Haigh  v.  Town  Council 
of  Sheffield,  L.  R.  10  Q.  B.  102 ;  44  L.  J.,  M.  C.  17.  In  the  latter  case 
it  was  also  held  that  any  owner  or  occupier  might  be  convicted  of  know- 
ingly permitting  any  other  person  to  use  such  house  or  place  for  the 
purpose  of  betting  though  the  person  so  using  it  was  in  no  sense  the 
occupier  or  keeper.  As  to  advertisements  of  bets  not  to  be  made  in 
any  office  or  place,  see  Cox  v.  Andrews,  12  Q.  B.  D.  126. 

It  has  been  doubted  Avhether  under  the  8  &  9  Vict.  c.  109,  s.  17,  it 
would  be  necessary  to  prove  that  the  money  was  actually  paid  over,  or 
whether  it  is  not  sufficient  if  the  money  be  lost  by  one  side  and  Mcm 
by  the  other.  Per  Bramwell,  B.,  in  R.  v.  Moss,  ubi  supra.  The 
statute,  however,  seems  to  contemplate  actual  payment  by  the  use  of 
the  word  "  obtaining  "  in  the  latter  part  of  the  section.  If  the  money 
were  not  actually  paid  over,  the  prisoner  might  be  convicted  of  the 
attempt  to  commit  the  statutable  misdemeanor.  See  the  14  &  15  Vict. 
c.  100,  s.  9,  supra,  p.  311. 


772  .  GRiEVOua  bodily  harm. 


*609]  *GRIEVOUS   BODILY   HARM. 

Ix  numerous  instances  the  words  "  grievous  bodily  harm  "  occur 
in  criminal  statutes,  which  make  either  doing  such  harm,  or  intending 
to  do  it,  or  attempting  to  do  it,  an  offence  punishable  in  a  particular 
way.  Sometimes  the  words  are  slightly  varied.  By  the  24  &  25 
Vict.  c.  100,  s.  11,  "whosoever  shall  cause  grievous  bodily  harm  with 
intent  to  murder"  is  guilty  of  felony.  See  infra,  tit.  "Murder,  At- 
tempt to  Commit."  By  s.  18,  whosoever  shall  "cause  any  grievous 
bodily  harm  to  any  person,  or  shoot  at  any  person,  or,  by  drawing  a 
trigger,  or  in  any  other  manner  attempt  to  discharge  any  kind  of 
loaded  arms  at  any  person,  with  intent,  in  any  of  the  cases  aforesaid, 
to  maim,  disfigure,  or  disable,  or  to  do  any  other  kind  of  grievous 
bodily  harm  to  any  person"  is  made  guilty  of  felony.  Supra,  p.  301. 
By  s.  20,  inflicting  "grievous  bodily  harm  upon  any  person  with  or 
without  any  weapon  or  instrument,"  is  made  a  misdemeanor.  Supra, 
p.  301.  By  s.  23,  administering  poison  so  as  to  inflict  "grievous  bodily 
harm/'  is  made  a  felony.  Infra,  tit.  "  Poison."  By  s.  26,  doing  or 
causing  to  be  done  any  "bodily  harm"  to  apprentices  and  servants  by 
neglect  of  masters,  etc.,  is  made  a  misdemeanor.  Infra,  tit.  "  Ill- 
treating  Apprentices."  By  s.  28,  whosoever  shall  do  any  "grievous 
bodily  harm"  to  any  person  by  explosive  substances,  is  made  guilty  of 
felony.  Ante,  p.  485.  By  s.  29,  causing  gunpowder  to  explode,  or 
sending  any  explosive  substance,  or  throwing  any  corrosive  fluid,  with 
intent  to  do  any  "grievous  bodily  harm,"  is  make  a  felony.  Ante,  p. 
485.  By  s.  30,  placing  any  explosive  substance  near  any  building  or 
vessel,  with  intent  to  do  any  "  bodily  injury,"  is  made  a  felony.  Ante, 
p.  485.  By  s.  31,  setting  spring  guns,  with  intent  to  inflict  "grievous 
bodily  harm,"  is  made  a  misdemeanor.  Infra,  tit.  "  Spring  Guns." 
By  s.  35,  drivers  of  carriages  by  furious  driving  doing  or  causing  to 
be  done  any  "  bodily  harm,"  are  made  guilty  of  a  misdemeanor.  Supra, 
p.  596. 

The  prisoner  was  indicted,  under  the  repealed  statute  of  7  Will.  4 
&  1  Vict.  c.  85,  s.  2,  for  causing  a  bodily  injury  dangerous  to  life,  with 
intent  to  commit  murder.  It  appeared  at  the  trial  that  the  prisoner 
intending  to  cause  the  death  of  her  infant  child  exposed  it  in  an  open 
field  on  a  cold  wet  day,  where  it  was  found  afler  some  hours  nearly 
dead  from  congestion  of  the  lungs  and  heart  caused  thereby.  The 
court  said  that  looking  to  the  character  of  the  other  offences  provided 
for  by  that  section  (poisoning,  stabbing,  etc.),  and  seeing  that  in  this 
case  there  had  been  no  lesion  of  any  part  of  the  body  of  the  infant, 
the  conviction  for  causing  "a  bodily  injury"  could  not  be  supported. 
R.  V.  Gray,  Dears.  &  B.^C.  C.  303;  26  L.  J.,  M.  C.  203.  See  24  i& 
25  Vict,  c  100,  s.  27,  supra,  p.  398. 


GRIEVOUS    BODILY    HARM.  773 

It  is  not  necessary  to  prove  malice  in  the  prisoner  against  the 
person  injured  ;  or,  if  tlic  intent  be  punishable,  that  any  grievous 
bodily  harm  was  in  fact  inflicted.  The  prisoner  having  been  a})pre- 
hended  by  one  Headley,  in  an  attempt  to  break  open  his  stable  in 
*the  night,  was  taken  into  Headley 's  house,  Avhere  he  threatened  r^p-,  ^ 
him  with  vengeance,  and  endeavored  to  carry  his  thrciits  into  L 
execution  with  a  knife  which  lay  before  him';  in  so  doing  he  cut  the 
prosecutor,  one  of  Headley's  servants,  who,  with  Headley,  was  trying 
to  take  away  the  knife.  The  jury,  ■who  found  theprisoner  guilty,  said 
that  the  thrust  was  made  with  intent  to  do  grievous  bodily  harm  to 
anybody  upon  whom  it  might  alight,  though  the  particular  cut  was  not 
calculated  to  do  so.  Upon  the  case  being  submitted  to  the  consideration 
of  the  judges,  they  were  of  opinion,  that  general  malice  was  sufficient 
under  the  statute,  without  particular  malice  against  the  person  cut ; 
and  that  if  there  was  an  intent  to  do  grievous  bodily  harm,  it  was  im- 
material whether  grievous  bodily  harm  was  done.  R.  v.  Hunt,  1  Moo. 
C.  C.  93.  This  case  appears  to  have  resolved  the  doubts  expressed  by 
Mr,  Justice  Bayley,  in  a  case  previously  tried  before  liim.  R.  v. 
Akenhead,  Holt,  N.  P.  C.  469.  The  same  construction,  with  regard 
to  general  malice,  was  put  upon  the  Coventry  Act.  See  R.  v.  Carroll, 
1  East,  P.  C.  394,  396. 

Where  the  prisoner,  in  attempting  to  commit  a  robbery,  threw  down 
the  prosecutor,  kicked  him,  and  produced  blood ;  Denman,  C.  J.,  left 
it  to  the  jury  to  say,  whether  his  intent  was  to  disable  the  prose- 
cutor, or  to  do  him  some  grievous  bodily  harm;  adding  that  noth- 
ing was  more  likely  to  accomplish  the  robbery  which  he  had  in 
view,  than  the  disabling  which  such  violence  would  produce.  R.  v. 
Shadbolt,  5  C.  &  P.  504,  24  E.  C.  L. 

The  intent  to  do  grievous  bodily  harm  may  be  inferred,  although 
the  prisoner  had  also  an  intent  to  commit  another  felony.  Thus 
where,  on  an  indictment,  charging  the  prisoner  with  cutting  M.  E., 
with  intent  to  do  her  some  grievous  bodily  harm, — it  appeared  that 
the  prisoner  cut  the  private  parts  of  a  girl,  ten  years  of  age, — Gra- 
ham, B.,  told  the  jury,  that  they  were  to  consider  whether  this  was 
not  a  grievous  bodily  injury  to  the  child,  though  eventually  not  danger- 
ous. As  to  the  intent,  though  it  probably  was  the  prisoner's  intention 
to  commit  a  rape,  yet,  if  to  eifect  the  rape,  he  did  that  which  the  law 
makes  a  distinct  crime,  viz.,  intentionally  did  the  child  a  grievous 
bodily  harm,  he  was  not  the  less  guilty  of  that  crime,  because  his 
principal  object  was  another.  He  added,  that  the  intention  of  the 
prisoner  might  be  inferred  from  the  act.  The  jury  found  the  pris- 
oner guilty,  and,  on  a  case  reserv^ed,  the  judges  held  the  conviction 
right.  R.  V.  Cox,  Russ.  &  Ry.  362.  So  where  the  prisoner  was 
charged  with  shooting,  watli  intent  to  do  A.  B.  some  grievous  bodily 
harm,  and  the  jury  found  that  the  prisoner's  motive  was  to  prevent 
his  lawful  apprehension,  but  that,  in  order  to  effect  that  purpose,  he 
had  also  the  intention  of  doing  A.  B.  some  grievous  bodily  harm  ; 
the  prisoner  being  convicted,  the  judges  held  that  if  both  the  intents 
existed,  it  was  immaterial  which  was  the  principal  and  which  the 


774  GRIEVOUS   BODILY   HARM. 

subordinate,  and  that  the  conviction  was  right.     E,.  v.  Gillow,  1  Moo. 
C.  C.  85. 

If  a  person  wound  another  in  order  to  rob  him,  and  thereby  inflict 
grievous  bodily  harm,  he  may  be  convicted  on  a  count  charging  him 
with  intent  to  do  grievous  bodily  harm.  R.  v.  Bowen,  Carr.  &  M. 
14D.  In  this^case,  it  was  also  held  that  even  if  tiie  prisoner's  was  not 
the  hand  that  inflicted  the  wound,  he  ought  to  be  convicted  on  tliis  in- 
dictment, if  the  jury  was  satisfied  that  he  was  one  of  two  persons 
engaged  in  the  common  purpose  of  robbing  the  prosecutor,  and  that 
the  otlier  person's  was  the  hand  that  inflicted  the  wound. 
*ri  n  *With  respect  to  cases  in  which  the  prisoner's  intention  was 
-J  to  injure  one  person,  and  in  which  he  has  in  fact  injured  an- 
other, the  following  points  have  been  decided  : — 

1.  If  the  prisoner  meant  to  inflict  grievous  bodily  harm  when  he 
struck,  and  did  in  fact  inflict  grievous  bodily  harm,  a  mistake  on  the 
prisoner's  part  as  to  the  identity  of  the  person  injured  makes  no  dif- 
ference, and  he  may  be  convicted  of  wounding  the  person,  whom  he 
did  in  fact  wound,  with  intent  to  do  grievous  bodily  harm  to  that  per- 
son. A.  shoots  at  B.,  desiring  to  wound  C,  and  supposing  B.  to  be 
C,  and  wounds  B.,  A.  may  be  convicted  of  M^ounding  B.  with  intent 
to  do  B.  griev^ous  bodily  harm.  R.  v.  Smith,  Dears.  C.  C.  559 ;  and 
see  R.  V.  Stopford,  infra.  These  cases  appear  to  be  inconsistent  with 
and  to  overrule  R.  v.  Holt  (per  Littledale,  J.),  in  7  C.  &  P.  518,  32 
E.  C.  L.,  but  they  may  perliaps  be  reconciled  by  referring  to  the  direc- 
tion of  Littledale,  .1.,  to  the  jury  that  a  man  must  be  held  to  intend 
the  natural  consequences  of  his  act.  The  learned  judge  said,  "  If 
this  had  been  a  case  of  murder,  and  the  prisoner  intending  to  murder 
one  person  had  by  mistake  murdered  another,  he  would  be  equally 
liable  to  be  found  guilty :  the  question,  however,  may  be  different  on 
the  construction  of  this  act." 

2.  If  the  prisoner  had  a  general  intention  to  inflict  grievous  bodily 
harm  on  any  one  of  a  group  of  persons,  and  in  pursuance  of  that  in- 
tent did  inflict  grievous  bodily  harm  on  A.,  with  respect  to  whom 
he  had  no  specific  intention,  he  may  be  convicted  of  wounding  A.  with 
intent  to  do  grievous  bodily  harm  to  A. 

The  prisoner  fired  a  loaded  pistol  at  a  group  of  boys,  of  whom  A. 
was  one,  and  hit  A.  Held,  that  he  was  rightly  convicted  of  wound- 
ing A.,  with  intent  to  do  A.  grievous  bodily  harm.  R.  v.  Fretwell, 
L.  &  C.  443.  The  prisoner  put  out  the  gas-lights  on  a  staircase  in  a 
theatre  with  the  intention  of  causing  terror  to  persons  who  were  about 
to  descend  ;  and  also,  with  the  intention  of  obstructing  the  exit,  placed 
an  iron  bar  across  the  doorway.  Upon  the  lights  being  thus  extin- 
guished, a  panic  seized  the  audience,  and  they  rushed  in  fright  down 
the  staircase,  forcing  those  in  front  against  the  iron  bar.  Several  of 
the  audience  were  injured  by  the  pressure  thus  occasioned,  and  amongst 
them  A.  and  B.  Held,  that  the  prisoner  was  rightly  convicted  of  un- 
lawfully and  maliciously  inflicting  grievous  bodily  liaim  upon  A.  and 
B.     R.  V.  Martin,  8  Q."  B.  D.  54^51  L.  J.,  M.  C.  3G. 

3.  If  the  prisoner  intend-;  to  inflict  gricvons  bodily  harm  on  A.,  and 
in  endeavoring  to  wound  A.  accidentally  inflicts  such  harm  on  B.,  he 


GRIEVOUo    i:ODILY    HARM.  770 

cannot  be  convicted  of  wounding  B.,  with  intent  to  do  grievous  bodily 
harm  to  B.  11.  v.  Ryan,  2  M.  &  R.  213,  and  see  R.  v.  Hewlett,  1 
F.  &  F.  91.  See,  however,  R.  v.  Stopibrd,  11  Cox,  C.  C.  643,  where 
from  the  report  it  would  a[)pear  that  Brett,  J.,  thought  that  these  cases 
were  not  distinguishable  from  R.  v.  Smith,  cited  supra. 

All  these  cases  are  reducible  to  the  single  principle  that  the  crimi- 
nal intention  referred  to  by  the  statutes  is  an  intention  to  injure  the 
person  actually  injured,  whether  the  reason  from  which  that  inten- 
tion proceeds  was  mistaken  or  not.  Intention  is  the  direction  of  the 
mind  towards  a  certain  lesult,  and  is  altogether  a  different  thing 
from  motive.  If  I  level  a  loaded  gun  at  a  man  and  fire  it,  I  intend 
to  shoot  that  man.  My  belief  that  that  man  is  A.  may  be  my  motive 
for  shooting  him  ;  but  it  is  quite  independent  of  my  intention  to 
do  so.  On  the  other  hand,  if  I  take  A.  for  B.,  and  shoot  at  A.  on 
*that  supposition,  and  accidentally  shoot  B.,  though  my  desire  r^r>-i  n 
to  hurt  B.  was  the  cause  of  my  intention  to  shoot  A.,  I  can  L 
hardly  be  said  to  have  shot  B.  intentionally,  and  it  may  be  doubted 
whether  a  wounding  of  B.  under  such  circumstances  would  be  within 
the  statute,  but  the  distinction  would  probably  be  considered  too  sub- 
tle to  be  allowed  to  prevail. 

A  constable  ^vas  employed  to  guard  a  copse  from  which  wood  had 
been  stolen,  and  for  this  purpose  carried  a  loaded  gun;  from  this 
copse  he  saw  the  prosecutor  come  out,  carrying  wood  which  he  was 
stealing,  and  called  him  to  stop;  the  prosecutor,  however,  running 
away,  the  constable,  having  no  other  means  of  bringing  him  to  jus- 
tice, fired  and  wounded  him  in  the  leg.  It  appeared  that  the  consta- 
ble was  not  aware  at  the  time  that  any  felony  had  been  committed  by 
the  prosecutor.  The  constable  having  been  convicted  upon  an  indict- 
ment charging  him  with  assaulting  the  prosecutor  with  intent  to  do 
him  griev^ous  bodily  harm,  the  Court  of  Criminal  Appeal  held  that 
the  conviction  was  right,  upon  the  ground  that  "the  fact  that  the 
prosecutor  was  committing  a  felony  was  not  known  at  the  time;  he 
was  therefore  liable  to  be  convicted,  though  the  amount  of  punishment 
might  deserve  great  consideration."  R.  v.  Dadson,  2  Den,  C.  C.  R. 
35 ;  20  L.  J.,  M.  C.  57. 

Where  a  party  who  is  being  assaulted,  and  who  is  entitled  to  defend 
himself,  unnecessarily  resorts  to  the  use  of  a  deadly  weapon,  he  may 
be  convicted  of  wounding  with  intent  to  do  grievous  bodily  harm. 
R.  V.  Adgar,  2  Moo.  &  R.  497. 

Upon  an  indictment  for  "  wounding  with  intent,"  if  the  proof  of 
the  intent  to  do  grievous  bodily  harm  fails,  the  defendant  may  be 
found  guilty  of  unlawfully  wounding.  14  &  15  Vict.  c.  19,  s.  5, 
infra,  tit.  "Wounding,"  and  see  R.  v.  Miller,  14  Cox,  C.  C.  356;  or 
if  the  indictment  be  for  the  misdemeanor  of  inflicting  grievous  bodily 
harm,  he  may  be  found  guilty  of  a  common  assault,  ante,  p.  309. 

See  as  to  the  form  of  indictment,  R.  v.  Cruse,  8  C.  &  P.  541,  34 
E.  C.  L.;  2  Moo.  C.  C.  53,  infra,  tit.  "Murder,  Attempt  to  commit." 


GUNPOWDER,     ^ee  EXPLOSIVES. 


776  HIGHWAYS — NUISANCE. 


^613] 


♦HIGHWAYS. 


PAGE 

Nuisance  to  highways  .......••  613 

Proof  of  the  way  being  a  highway    ......  613 

Proof  of  the  highway  as  set  forth         •        .        .        .        .        .  618 

With  regard  to  the  termini 618 

Proof  of  changing 618 

Proof  of  the  nuisance — what  acts  amount  to     .        .        .        .  619 

Authorized  by  an  Act  of  parliament         ....  622 

Whether  justifiable  from  necessity      ...  .  622 

Judgment  and  sentence 623 

Abatement  of  nuisances     ,,...«..  623 

Not  repairing  highways  623 

Proof  of  liability  to  repair  .......  623 

Parish 623 

Inclosure •        •  626 

Particular  districts  by  custom  .....  627 

Corporations 629 

Private  individuals 629 

Proofs  in  defence         .        .  ......  630 

Parish 630 

District  or  private  individuals      .....  631 

Particulars  of  the  highways  obstructed,  etc 632 

Costs,  etc -. 632 

New  trial 633 

Indictment  by  justices 633 

NUISANCE  TO  HIGHWAYS. 

Upon  prosecutions  for  nuisance  to  a  highway,  the  prosecutor  must 
prove :  1st,  that  the  way  in  question  is  a  common  highway ;  2nd, 
the  obstructing  of  it,  or  other  nuisance. 

Proof  of  the  way  being  a  highway.  Every  way  which  is  common 
to  the  public  is  a  highway.  Thus  a  bridge  may  be  a  common  high- 
way. 2  Ld.  Raym.  1174.  Stt  a  footway;  Logan  v.  Burton,  5  B.  & 
C.  513,  11  E.  C  L.;  for  it  is  a  public  highway  for  foot  passengers  ; 
Allen  V.  Ormond,  8  East,  4.  So  a  public  bridle-way.  R.  v.  Inhab. 
of  Salop,  13  East,  95.  So  a'  towing-path,  used  only  by  horses  em- 
ployed in  towing  vessels,  is  a  highway  for  that  purpose.  Per  Bayle}', 
J.,  R.  V.  Severn  and  Wye  Railway  Co.,  2  B.  &  A.  648.  And  a  railway 
made  under  the  authority  of  an  Act  of  parliament,  which  provides  that 
the  public  shall  have  the  beneficial  enjoyment  of  it,  is  also  a  highway 
to  be  used  in  a  particular  manner.  R.  v.  Severn  and  Wye  Rail- 
way Co.,  2  B.  <fe  A.  646.  A  river  which  is  common  to  all  the 
king's  subjects  has  been  frequently  held  to  be  a  highway  ;  and  if 
its  course  change,  the  highway  is  diverted  into  the  new  channel  ; 
*«i/n  *1  Rol.Ab.  390;  R.  r.  Hammond,  10  Mod.  382;  Hawk.  P. 
^^^^  C.  b.  1,  c.  76,  s.  1. 
It  must  appear  that  the  highway  was  a  way  common  to  all  the 


HIGHWAYS — NUISANCE.  777 

king's  subjects ;  for,  though  numerous  persons  may  be  entitled  to 
use  it,  yet  if  it  be  not  common  to  all,  it  is  not  a  public  highway. 
Thus  a  private  way,  set  out  by  commissioners  under  an  inclosure  Act, 
for  the  use  of  the  inhabitants  of  nine  parishes,  and  directed  to  be 
repaired  by  them,  does  not  concern  the  public,  nor  is  it  of  a  public 
nature,  but  merely  concerns  the  individuals  who  have  a  right  to  use 
it,  and  consequently  cannot  be  the  subject  of  an  indictment.  R,  v. 
Ricliards,  8  T.  R.  634.  In  general,  the  proof  of  any  particular 
way  being  a  highway,  is  from  the  use  of  it  by  the  public  as 
such  for  such  a  number  of  years  as  to  afford  evidence  of  a  dedication 
by  the  owner  of  the  soil  to  the  public.  The  particular  manner  in 
which  it  has  been  used,  says  Mr.  Starkie,  as  where  it  has  been  used 
for  some  public  purpose,  as  conveying  materials  for  the  repairs  of 
other  highways  (R.  v.  Wadswdrth,  1  B.  &.  Aid.  63),  or  upon  any 
occasion  likely  to  attract  notice,  is  very  material ;  for  such  instances 
of  user  would  naturally  awaken  the  jealousy  and  opposition  of  any 
private  owner,  who  was  interested  in  preventing  the  acquisition  of 
any  right  by  the  public;  and  consequently  acquiescence  affords  a 
stronger  presumption  of  right,  than  that  which  results  from  posses- 
sion and  user  in  ordinary  cases.  2  Stark.  Ev.  380,  2nd  ed.  A  road 
may  be  dedicated  to  the  public  for  a  certain  time  only,  as  by  the  pro- 
visions of  an  Act  of  parliament,  and  upon  the  expiring  or  repeal  of 
the  act,  its  character  as  a  public  highway  will  cease.     R.  v.  Mellor,  1 

B.  &  Ad.  32,  20  E.  C.  L.  With  reference  to  this  case,  however,  Pat- 
teson,  J.,  in  giving  judgment,  in  R.  v.  Landsmere,  15  Q.  B.  689  ;  19 
L.  J.,  M.  C.  215,  said,  "  At  the  trial  I  was  pressed  with  R.  v.  Mellor, 
but  I  cannot  help  thinking  that  the  court  decided  on  the  old  doctrine 
of  adoption  by  the  parish  throu  gh  which  the  road  passes,  which  has 
been  now  quite  abandoned,"  In  R.  v.  Landsmere,  a  turnpike  road, 
made  under  a  local  Act,  which  was  to  be  in  force  for  a  limited  time, 
and  which  had  been  used  by  the  public  both  during  that  time  and 
after  its  expiration,  was  held  to  be  a  highway  which  the  parish  was 
bound  to  repair.  Where  commissioners  for  setting  out  roads  have 
exceeded  their  authority,  in  directing  that  certain  private  roads, 
which  they  set  out,  shall  be  repaired  by  the  township,  if  the  public 
use  such  roads,  it  is  a  question  for  the  jury  whether  they  have  not  been 
dedicated  to  the  public.^  R.  v.  Wright,  3  B.  &  Ad.  681,  23  E.  C.  L. 
In  the  same  case,  Lord  Tenteixien  held,  that  when  a  road  runs  through 
a  space  of  fifty  or  sixty  feet,  between  inclosures  set  out  by  Act  of  par- 
liament, it  is  to  be  presumed  that  the  whole  of  that  space  is  public, 
though  it  may  not  all  be  used  or  kept  in  repair  as  a  road.  Ace.  R.  v. 
The  United  Kingdom  Electric  Telegraph  Co.,  2  B.  &  S.  647,  110  E. 

C.  L.;  31  L.  J.,'M.  C.  166. 

Unless  there  be  some  one  who  was  capable  of  dedicating  the  road 
to  the  public,  it  seems  that  a  use  of  it  as  a  highway  by  them,  and  re- 

>  Ward  V.  Follv,  2  South.  582 ;  Galatian  v.  Gardiner,  7  Jolins,  166 ;  Todd  v.  Kome, 
2  Greenl.  55  ;  Georpjetown  v.  Taylor,  2  Bay,  282 ;  State  v.  Wilkinson,  2  Vt.  480.  But 
see  Hincklev  v.  Hastings,  2  Pick.  162;  Commonwealth  v.  Low,  3  Id.  408  ;  Odiorne  v. 
Wade,  5  Id."  421.     S. 


778  HIGHWAYS — NUISANCE. 

pairs  done  by  the  parish  under  a  mistaken  idea  of  their  liability,  will 
not  create  such  liability,  though  it  would  be  otherwise  if  the  repairs 
were  done  with  a  full  knowledge  of  the  facts,  and  with  an  intention 
of  taking  upon  themselves  the  burden.  R,.  v.  Edmonton,  1  Moo.  &,  R. 
24.  Trustees,  in  whom  land  is  vested  for  public  purposes,  may  dedicate 
the  surface  to  the  use  of  the  public  as  a  highway,  provided  such  use  be 
not  inconsistent  with  the  purposes  for  which  the  land  is  vested  in 
them.  R.  V.  Leake,  5  B.  &  Ad.  469,  22  E.  C.  L.;  2  Nev.  &  M.  583. 
*fil  K]  *^^®  ^^^^  Grand  Surrey  Canal  v.  Hall,  ante,  p.  355  ;  and  R.  v. 
-'  Eastmark,  11  Q.  B.  877.  As  to  inferring  a  dedication  from 
user,  although  the  lands  have  been  let  on  lease,  see  Winterbottom  v. 
Ld.  Derby,  L.  R.  2  Ex.  316  ;  36  L.  J.  Ex.  194. 

In  determining  whether  or  not  a  way  has  been  dedicated  to  the 
public,  the  proprietor's  intention  must  be  considered.  If  it  appear 
only  that  he  has  suffered  a  continual  user,  that  may  prove  a  dedi- 
cation ;  but  such  proof  may  be  rebutted  by  evidence  of  acts  showing 
tliat  he  contemplated  lonly  a  license  resumable  in  a  particular  event. 
Thus  where  the  owner  of  land  agreed  with  an  iron  company,  and  with 
the  inhabitants  of  a  hamlet  repairing  its  own  roads,  that  a  way  over 
his  land  in  such  hamlet  should  be  open  to  carriages,  that  the  company 
should  pay  him  5s.  a  year,  and  find  cinder  to  repair  the  way,  and  that 
the  inhabitants  of  the  hamlet  should  load  and  lay  down  the  cinder, 
and  the  way  was  thereupon  left  open  to  all  persons  passing  with  car- 
riages for  nineteen  years,  at  the  end  of  Avhich  time  a  dispute  arising, 
the  passage  was  interrupted,  and  the  interruption  acquiesced  in  for 
five  years,  it  was  held  that  the  evidence  showed  no  dedication,  but 
a  license  only,  resumable  on  breach  of  the  agreement.  Barraclough 
V.  Johnson,  8  A.  &  E.  99  ;  and  see  R.  v.  Chorley,  12  Q.  B.  515,  64 
E.  C.  L. 

There  may  be  a  partial  dedication,  as  in  the  case  of  a  footpath 
through  a  field  which  is  constantly  ploughed  across  the  footpath.  See 
Mercer  v.  Woodgate,  L.  R.  5  Q.  B.  26  ;  39  L.  J.,  M.  C.  21 ;  Arnold 
V.  Blaker,  L.  R.  6  Q.  B.  433;  40  L.  J.,  Q.  B.  185;  Arnold  v.  Hol- 
brook,  L.  R.  8  Q.  B.  96  ;  42  L.  J.,  Q.  B.  96. 

Now,  by  the  Highway  Act,  5  &  6  Will.  4,  c.  50,  s.  23,  no  road  or 
occupation  way,  made  or  liereafter  to  be  made  by  any  individual  or 
private  person,  body  politic  or  corporate,  nor  any  roads  already  set 
out,  or  to  be  hereafter  set  out  as  a  private  driftway  or  horsepath,  in 
any  award  of  commissioners  under  an  inclosure  Act,  shall  be  deemed, 
etc.,  a  highway  which  the  inhabitants  of  any  parish  shall  be  liable  to 
repair,  unless  the  person,  etc.,  proposing  to  dedicate  such  highway  to 
the  use  of  the  public,  shall  give  three  montlis'  notice  in  writing  to  the 
surveyor  of  the  parish  of  his  intention  to  dedicate  such  highway, 
describing  its  situation  and  extent,  and  shall  have  made  the  same  in 
a  substantial  manner,  and  of  the  width  required  by  the  Act,  and  to 
the  satisfaction  of  the  said  surveyor,  and  of  any  two  justices,  etc., 
who  on  receiving  notice  from  sucli  person,  etc.,  are  to  view  the  same, 
and  to  certify  that  such  highway  has  been  made  in  a  substantial 
manner,  etc.,  which  certificate  shall  be  enrolled  at  the  next  quarter 


HIGHWAYS — NUISANCE.  779 

sessions,  then  and  in  such  case,  after  the  said  highway  shall  have  been 
used  by  the  public,  and  duly  repaired  by  the  said  person,  etc.,  for 
twelve  calendar  months,  such  highway  shall  for  ever  thereafter  be  kept 
in  repair  by  the  parish  in  which  it  is  situate  :  provided  that,  on  re- 
ceipt of  such  notice  as  aforesaid,  the  surveyor  shall  call  a  vestry  meet- 
ing, and  if  such  vestry  shall  deem  such  highway  not  to  be  of  sufficient 
utility  to  justify  its  being  kept  in  repair  at  the  expense  of  the  said 
parisli,  any  one  justice  of  the  ])eace,  on  the  application  of  the  said 
surveyor,  shall  summon  the  party  proposing  to  made  the  new  higliM-av, 
to  appear  before  the  justices  at  the  next  special  sessions  for  the  high- 
ways, and  the  question  as  to  the  utility  of  such  highway  shall  be  de- 
termined at  the  discretion  of  such  justices.  This  section  is  not  retro- 
spective in  respect  of  roads  completely  public  by  dedication  at  the 
passing  of  the  act,  but  applies  to  roads  then  made  and  in  progress  of 
dedication.     R.  v.  Westmark,  2  Moo.  &  R.  305. 

*Formerly,  according  to  the  opinions  of  some  persons,  a  way  r^p^  ^ 
was  only  a  highway  when  it  led  directly  from  a  market  town,  L  "  " 
or  from  town  to  town.  Hawk.  P.  C.  b.  1,  c.  76,  s.  1.  It  is  said  by 
Lord  Hale,  that  if  a  way  lead  to  a  market,  and  it  is  a  way  for  all 
travellers,  and  communicates  with  a  great  road,  it  is  a  highway ;  but  if 
it  lead  only  to  a  church,  or  to  a  private  house,  or  to  a  village,  then  it 
is  a  private  way  ;  but  it  is  a  matter  of  fact,  and  much  depends  upon 
common  reputation.  R,.  v.  Austin,  1  Vent.  189.  But  it  was  long 
since  held  to  be  sufficient  if  the  way  in  question  communicates  at  its 
termini  with  other  highways.  Thus  on  an  indictment  for  obstructing 
a  passage,  which  led  from  one  part  of  a  street  by  a  circuitous  route, 
to  another  part  of  the  same  street,  and  which  had  been  opened  to  the 
public  as  far  back  as  could  be  remembered.  Lord  Ellenborough  held 
this  to  be  a  highway  ;  though  it  was  not  in  general  of  use  to  those 
■walking  up  and  down  the  street,  but  was  only  of  convenience  when 
the  street  was  blocked  up  with  a  crowd.  R.  v.  Lloyd,  1  Camp.  260. 
Whether  a  street  which  is  not  a  thoroughfare  can  be  deemed  a  highway 
has  been  a  subject  of  considerable  discussion.  In  the  case  last  cited, 
Lord  Ellenborough  said,  "  I  think  that,  if  places  are  lighted  by  public 
bodies,  this  is  strong  evidence  of  the  public  having  a  right  of  way 
over  them  ;  and  to  say  that  this  right  cannot  exist,  because  a  particu- 
lar place  does  not  lead  conveniently  from  one  street  to  anotlier,  would 
go  to  extinguish  all  highways  where  (as  in  Queen's  square)  there  is  no 
thoroughfare."  The  same  doctrine  was  recognized  by  Lord  Kenyon, 
in  the  case  of  The  Rugby  Charity  v.  Merry  weather,  1 1  East,  375  {n)^ 
where  he  says,  "  As  to  this  not  being  a  thoroughfare,  that  can  make 
no  difference.  If  it  were  otherwise,  in  such  a  great  town  as  this,  it 
would  be  a  trap  to  make  persons  trespassers."  The  opinions  of  Lord 
Kenyon  and  I^ord  Ellenborough  on  this  point  have,  however,  been 
questioned.  In  Woodyer  v.  Hadden,  5  Taunt.  125,  1  E.  C.  L.,  the 
court  expressed  their  dissatisfaction  with  the  dictum  of  Lord  Kenyon 
in  the  Rugby  case;  and  in  Wood  v.  Veal,  5  B.  &  A.  454,  Abbott,  C. 
J.,  did  the  same.  There  is  now,  however,  no  doubt,  that  a  way  may 
be  a  highway,  though  it  be  what  is  commonly  called   a  cul-de-sac. 


780  HIGHWAYS — NUISANCE. 

Bateman  v.  Bluck,  21  L,  J.,  Q.  B.  407  ;  Campbell  v.  Lang,  1   Macq. 
H.  L.  Ca.  451  ;  Young  v.  Cuthbertson,  Id.  455. 

A  way  ceases  to  be  a  public  way  Avhere  the  access  to  it  has  been 
stopped  by  stopping  up  the  roads  leading  to  it.  Baily  v.  Jamieson,  1 
C.  P.  D.  329. 

„  As  to  wil^c^'^l'  there  can  l^e  .-i   public  right  of  way  over  every  part 
of  a  close,  see  1  Russ.  on  Cri.  445,  5th  ed. 

Where  justices  in  petty  sessions  have  made  an  order  for  stopping  a 
highway  under  a  local  Act  giving  a  power  of  appeal,  and  the  time  for 
appeal  has  elapsed,  it  cannot  be  contended,  on  an  indictment  for 
obstructing  such  way,  that  the  order  was  bad,  because  the  justices 
were  not  properly  summoned  to  the  petty  session.  But  an  order 
made  under  the  repealed  statute  55  Geo.  3,  c.  68,  s.  2,  which  enacts, 
"  that  where  it  shall  appear  upon  the  view  of  any  two  or  more 
justices  "  that  a  highway  is  unnecessary,  the  same  may  be  stoppeol  by 
order  of  such  justices ;  the  order  is  not  valid  if  it  state  only  that  the 
justices  having  viewed  the  public  roads,  etc.,  within  the  parish,  etc.  (in 
which  the  road  lies),  and  being  satisfied  that  certain  roads  are  unneces- 
sary, do  order  the  same  to  be  stopped  up,  and  the  objection  may  be 
taken  at  the  trial  of  such  indictment.  R.  v.  Marquis  of  Downshire,  4 
^n^  y-j  *A.  &  E.  698,  31  E.  C.  L.  And  see  further  as  to  stopping 
-"   highways.     R.  v.  Cambridgeshire,  Id.  111. 

By  an  Act  for  inclosing  lands  in  several  parishes  and  townships,  it 
was  directed  that  the  allotments  to  be  made  in  respect  of  certain  mes- 
suages, etc.,  should  be  deemed  part  and  parcel  of  the  townships  re- 
spectively in  which  the  messuages,  etc.,  were  situate.  And  the  commis- 
sioners under  the  Act  were  directed  in  their  award  to  make  such  orders 
as  they  should  think  necessary  and  proper  concerning  all  public  roads, 
"  and  in  what  townships  and  parishes  the  same  are  respectively  situate, 
and  by  whom  they  ought  to  be  repaired.  The  commissioners  by  their 
award  directed  that  there  should  be  certain  roads.  One  of  these,  called 
the  Sandtoft-road,  passed  between  two  allotments.  The  road  was  an- 
cient. The  part  of  the  common  over  which  it  ran  before  the  award 
was  in  the  townsiiip  of  H.,  and  the  road  was  still  in  that  township, 
unless  its  situation  was  changed  by  the  local  Act  and  the  award.  The 
new  allotments  on  each  side  were  declared  by  the  award  to  be  in  other 
townships  than  H.  The  award  did  not  say  in  what  townships  the 
road  was  situate,  nor  by  wliom  it  was  repairable.  It  was  held  that 
the  Act,  by  changing  the  local  situation  of  the  allotments,  did  not,  as 
a  consequence,  change  that  of  the  adjoining  portions  of  the  road,  and, 
therefore,  that  the  road  in  question  continued  to  be  in  H.  It  was 
also  held  by  Lord  Denman,  C.  J.,  that  where  the  herbage  of  a  road 
becomes  vested  by  the  General  Inclosure  Act  (41  Geo.  3,  c.  109,  s.  11) 
in  tlie  proprietors  of  allotments  on  each  side,  no  presumption  arises 
that  the  soil  itself  belongs  to  such  proprietors.  R.  v.  Hatfield,  4  A. 
&  E.  156,  31  E.  C.  L. 

By  the  Highways  Act,  '5  &  6  Will.  4,  c.  50,  ss.  88,  89,  persons 
aggrieved  by  the  decision  of  the  justices  in  stopping  or  diverting 
highways,  may  appeal  to  the  sessions  where  a  jury  is  to  determine 


HIGHAVAYS — NUISANCE.  781 

whether  the  highways  stopped,  etc.,  are  unnecessary,  or  more  commo- 
dious, etc. 

By  sect.  92,  where  a  highway  is  turned  or  diverted,  the  parisli 
or  other  party  liable  to  repair  the  old  highway,  shall  repair  the 
new  highway,  without  any  reference  whatever  to  its  parochial  locality. 

Where,  on  an  indictment  for  obstructing  a  highway,  a  principal 
question  was,  whether  the  way  was  public  or  private,  and  evidence 
was  offered  that  a  person  since  deceased  had  plantc.'d  a  willow  on  a 
spot  adjoining  the  road,  on  ground  of  which  he  was  tenant,  saying  at 
the  same  time  that  he  planted  it  to  show  where  the  boundary  of  the 
road  wvLS  when  he  was  a  boy  ;  it  was  held  that  such  declaration  was  not 
evidence  either  as  showing  reputation,  as  a  statement  accompanying 
an  act,  or  as  the  admission  of  an  occupier  against  his  own  interest. 
K.  V.  Bliss,  7  A.  &  E.  550,  34  E.  C.  L. 

But  on  an  indictment  against  a  township  for  non-repair  of  a  road,  an 
indictment  against  an  adjoining  township  for  non-repair  of  a  pcn-tion 
of  highway  in  continuation  of  the  road  in  question,  either  submitted 
to,  or  prosecuted  to  conviction,  is  admissible  as  evidence  to  prove  the 
road  in  question  to  be  a  highway.  R.  v.  Brightside  Bierlow,  13  Q.  B. 
933,  QQ  E.  C.  L. ;  19  L.  J.,  M.  C.  50. 

On  an  indictment  for  the  continuance  of  a  nuisance  the  conviction 
on  a  former  indictment  for  the  same  nuisance,  against  the  same  de- 
fendant, is  conclusive  evidence  that  the  way  is  a  highway,  and  that 
the  obstruction  is  a  nuisance.     R.  v.  Maybury,  4  F.  &  F.  90. 

*Proof  of  the  highway  as  set  forth.  The  highway  in  r^/^^o 
question  must  be  proved  as  set  forth  in  the  indictinent;  but  if  L 
the  description  be  too  general  and  indefinite,  advantage  must  be  taken 
of  that  defect  by  plea  in  abatement,  and  not  under  the  general  issue. 
R.  V.  Hammersmith,  1  Stark.  N.  P.  C.  357 ;  and  see  R.  v.  AVaverton, 
2  Den.  C.  C.  R.  340 ;  21  L.  J.,  M.  C.  7.  But  an  indictment  describ- 
ing a  way  as  from  A.  towards  and  unto  B.,  is  satisfied  by  proof  of  a 
public  way  leading  from  A.  to  B.,  though  it  turns  backward  between 
A.  and  B.  at  an  acute  angle,  and  though  the  part  from  A.  to  the  angle 
be  an  immemorial  way,  and  the  part  from  the  angle  to  B.  be  recently 
dedicated.  B.  was  a  church :  the  path  from  A.,  after  passing  the  point 
at  which  the  obstruction  took  place,  reached  the  churchyard,  but  not 
the  church,  before  reaching  the  angle :  it  was  held  by  Lord  Denman, 
C.  J.,  and  semble,  per  Coleridge,  J,,  that  this  proof  would  not  have 
supported  an  indictment  describing  the  whole  as  an  immemorial  way. 
R.  V.  Marchioness  of  Downshire,  4  A.  &  E.  232,  31  E.  C.  L. 

An  indictment  for  obstructing  a  highway  (by  ])lacing  a  gate  across 
it)  stated  the  way  to  be  "  from  the  town  of  C."  to  a  place  called  H., 
and  charged  the  obstruction  to  be  "  between  the  town  of  C."  and  H. 
By  a  local  paving  Act,  the  limits  of  the  toAvn  of  C.  were  defined,  and 
the  locus  in  quo  was  within  these  limits,  and  the  prosecutors  relied  on 
the  local  turnpike  acts,  which  prohibited  the  erection  of  gates  within 
the  town.  It  was  held  by  Patteson,  J.,  that  there  was  a  variance,  and 
the  indictment  could  not  be  sustained,  as  the  terms  "  li'om  "  and  "  be- 


782  HIGHWAYS — NUISANCE. 

tween  "  excluded  the  town,  and  according  to  the  limits  defined  by  the 
local  paving  Act  on  which  the  prosecutors  relied  as  bringing  the  ob- 
struction within  the  other  local  Acts,  the  obstruction  was  shown  to  be 
within  the  town.  R.  v.  Fisher,  8  C.  &  P.  182,  34  _E.  C.  L.  ^  So 
where  it  appeared  on  a  similar  indictment  which  described  the  high- 
way as  "  leading  from  the  to\vnshIp  of  D.  in,  etc.,  unto  the  town  of 
C,"  that  the  gate  was  put  up  in  the  township  of  D. ;  Coleridge,  J., 
held,  that  the  defendant  must  be  acquitted,  as  the  words  "  from  "  and 
"unto"  excluded  the  terminL  II.  v.  Botfield,  Carr.  &  M.  151,41 
E.  C.  L. ;  see  also  R.  v.  Steventon,  1  C.  &  K.  55,  47  E.  C.  L.  Where 
the  way  was  stated  to  be  "  for  all  the  liege  subjects,  etc.,  to  go,  etc., 
with  tfieir  horses,  coaches,  carts,  and  carriages,"  and  the  evidence  was 
that  carts  of  a  particular  description,  and  loaded  in  a  particular  man- 
ner, could  not  pass  along  the  way,  it  was  held  to  be  no  variance.  R.  v. 
Lyon,  Ry.  &  Moo.  N.  P.  C.  151.  Where  the  way  is  stated  to  be  a 
pack  and  prime  way,  and  appears  to  be  a  carriage-way,  the  variance 
is  fatal.  R.  V.  Inhab.  of  St.  Weonard's,  6  C.  &  P.  582,  25  E.  C.  L. 
But  where  the  indictment  alleged  an  immemorial  way,  and  the  evi- 
dence proved  that  the  way  had  been  made  within  legal  memory,  the 
variance  was  held  to  be  immaterial.  R.  v.  Norweston,  1 6  Q.  B.  109, 
71  E.  C.  L. ;  20  L.  J.,  M.  C.  46  ;  and  now  see  14  &  15  Vict.  c.  100, 
s.  1,  as  to  the  power  of  amendment  in  cases  of  variance  between  the 
indictment  and  the  proof,  ante,  p.  209. 

Proof  of  the  highway  as  set  forth — with  regard  to  the  termini. 

Although  it  is  unnecessary  to  state  the  termini  of  the  highway,  yet 
if  stated  they  should  be  proved  as  laid.  R.  v.  Upton-on-Severn,  6 
C.  &  P.  133,  25  E.  C.  L.     See  also  R.  v.  Norweston,  supra. 

Proof  of  changing.  An  ancient  highway  cannot  be  changed  with- 
out the  king's  license  first  obtained,  ujion  a  writ  of  ad  quod  damnum, 
*filQl  *^"^  inquisition  thereon  found  that  such  a  change  will  not  be 
J  prejudicial  to  the  public;  but  it  is  said  that  the  inhabitants  are 
not  bound  to  watch  such  new  way,  or  to  make  amends  for  a  robbery 
committed  therein,  or  to  repair  it.  1  Hawk.  P.  C.  b.  1,  c.  76,  s.  3. 
A  private  Act  of  parliament  for  inclosing  lands,  and  vesting  a  power 
in  commissioners  to  set  out  a  new  road,  is  equally  strong,  as  to  these 
consequences,  with  the  writ  of  ad  quod  damnum.  1  Burr.  465.  An 
owner  of  land,  over  which  there  is  an  open  road,  may  inclose  it  of  his 
own  authority  ;  but  he  is  bound  to  leave  sufficient  space  and  room  for 
the  road,  and  he  is  obliged  to  repair  it  till  he  throws  up  the  inclosure. 
Id. 

Tiie  power  of  widening  and  changing  highways  was  given  to  justices 
of  the  peace  by  the  now  repealed  statutes  13  Geo.  3,  c.  78,  and  55  Geo. 
3,  c.  68,  and  is  continued  to  them,  under  certain  modifications,  by  the 
Highways  Act,  5  &  6  Will.  4,  c.  50.  See  also  25  &  26  Vict.  c.  61,  s. 
44  ;  27  '&  28  Vict.  c.  101,  ss.  21,  47,  48. 

A  statute  giving  authority  to  make  a  new  course  for  a  navigable 
river,  along  which  there  is  a  towing-patli,  will  not  take  away  the  right 


HIGHWAYS — NUISANCE.  783 

of  the  public  to  use  that  path,  without  express  words  for  that  purpose. 
R.  V.  Tippett,  1  Russ.  Cri.  469,  5th  ed. 

Proof  of  the  nuisance — what  acts  amount  to.  There  is  no  doubt 
but  that  all  injuries  whatever  to  any  highway,  as  by  digging  a  ditch  or 
making  a  hedge  across  it,  or  laying  logs  of  timber  on  it,  or  doing  any 
act  which  will  render  it  less  commodious  to  the  public,  are  nuisances 
at  common  law ;  and  it  is  no  excuse  that  the  logs  are  only  laid  here 
and  there,  so  that  people  may  have  a  passage,  by  winding  and  turning 
through  them.  Hawk.  P.  C.  b.  1,  c.  76,  ss.  144,  145.  So  erecting  a 
gate  across  a  highway  is  a  nuisance ;  for  it  not  only  interrupts  the 
public  in  their  free  and  open  passage,  but  it  may  in  time  become  evi- 
dence in  favor  of  the  owner  of  the  soil.  Id.  c.  75,  s.  9.  It  is  also  a 
nuisance  to  suffer  the  ditches  adjoining  a  highway  to  be  foul,  by  reason 
of  which  the  way  is  impaired  ;  or  to  suffer  the  boughs  of  trees  grow- 
ing near  the  highway  to  hang  over  the  road  in  such  a  manner  as  to 
incommode  the  passage.^  Id.  c.  76,  s.  147  ;  and  see  5  &  6  Will.  4,  c. 
50.  Walker  v.  Horner,  1  Q.  B.  D.  4  ;  45  L.  J.,  M.  C.  4.  There 
can  be  no  doubt,  that  every  contracting  or  narrowing  of  a  public  high- 
way is  a  nuisance  ;  it  is  frequently,  however,  difficult  to  determine  how 
far  in  breadth  a  highway  extends,  as  where  it  runs  across  a  common, 
or  where  there  is  a  hedge  only  on  one  side  of  the  way,  or  where,  though 
there  are  hedges  on  both  sides,  the  space  between  them  is  much  larger 
than  what  is  necessary  for  the  use  of  the  public ;  in  these  cases  it  would 
be  for  a  jury  to  determine  how  far  the  road  extended.  It  seems  that, 
in  ordinary  cases,  where  a  road  runs  between  fences,  not  only  the  part 
which  is  maintained  as  solid  road,  but  the  whole  space  between  the 
fences  is  to  be  considered  as  highway.  1  Russ.  Cri.  474,  5th  ed.; 
Brownlow  v.  Tomlinson,  1  M.  &  Gr.  484,  39  E.  C.  L.;  R.  v.  Wright, 
3  B.  &  Ad.  681,23  E.  C.  L.;  R.v.  Birmingham  Railwav,  1  Railw. 
C.  317;  R.  V.  The  United  Kingdom  Electric  Telegraph' Co.,  2  B.  & 
S.  647,  110  E.  C.  L.;  31  L.  J.,  M.  C.  166.  Now,  however,  by  the 
27  &  28  Vict.  c.  101,  s.  51,  any  obstruction  therein  mentioned,  which 
is  within  fifteen  feet  of  the  centre  of  the  highway,  may  be  removed. 
Where  a  wagoner  occupied  one  side  of  a  public  street  in  a  city, 
before  his  warehouses,  in  loading  and  unloading  his  wagons, 
for  several  hours  at  a  time,  by  night  and  by  day,  having  one 
*wagon  at  least  usually  standing  before  his  warehouses,  so  r:^f>c)(\ 
that  no  wagon  could  pass  on  that  side  of  the  street ;  this  was  '- 
held  to  be  a  nuisance,  although  there  was  room  for  two  carriages  to 
pass  on  the  opposite  side.  R.  v.  Russell,  6  East,  427.  So  excavations 
made  close  to  a  highwav  are  a  nuisance.  Barnes  v.  Ward,  9  C.  B. 
392,  67  E.  C.  L.;  Hardcastle  v.  S.  Yorkshire  Railwav,  4  H.  &  N. 
67 ;  Hounsell  v.  Smyth,  7  C.  B.,  N.  S.  731,  97  E.  C.  L.;  Hadley  v. 
Taylor,  L.  R.  1  C.  P.  53.  So  keeping  coaches  at  a  stand  in  a  street 
plying  for  passengers,  is  a  nuisance.     R.  v.  Cross,  3  Camp.   226  ; 

^  Urinating  in  a  spring  near  a  public  highway,  from  which  travellers  are  accus- 
tomed to  drink,  is  a  public  offence  within  the  definition  of  a  nuisance.  State  v.  Tay- 
lor, 29  Ind.  517.    S. 


784  HIGHWAYS — NUISANCE. 

Wilkins  V.  Day,  12  Q.  B.  D.  110.  So  exhibiting  effigies  at  <i  window, 
and  thereby  attracting  a  crowd.  R.  v.  Carlisle,  6  C  &  1*.  6o6,  25 
E.  C.  L.  Ploughing  up  a  footpath  is  a  nuisance,  R.  v.  Griesley,  1 
Vent.  4,  Wellbeloved  on  Highways,  443,  both  on  the  ground  of  incon- 
venience to  the  public,  and  of  injuring  the  evidence  of  their  title; 
but  there  may  be  a  limited  dedication  of  a  foot-path  subject  to  the 
right  to  plough  it  up,  see  anfe,  p.  615.  Where  at  the  trial  it  aj)- 
peared,  that  the  defendants  were  a  company,  established  by  deed, 
for  the  purpose  of  lighting  the  streets  of  a  town  with  gas,  and  had 
obtained  a  certificate  of  complete  registration  under  the  7  &  8  Vict. 
c.  110  (now  repealed  by  25  &  26  Vict.  c.  89);  that  they  had  opened 
a  trench  in  one  of  the  streets  for  the  purpose  of  laying  down  their 
mains  along  the  middle  of  the  street ;  that  they  had  obtained  the 
permission  of  the  highway  board  as  well  as  of  the  commissioners 
for  lighting  the  town  appointed  under  a  local  Act  for  so  doing ; 
and  it  was  admitted  that  they  had  used  reasonable  despatch  in  lay- 
ing down  the  pipes  and  restoring  the  road,  but  during  the  execution 
of  the  works  the  street  was  impassable  ;  it  was  held,  that  inasmuch 
as  the  acts  of  the  defendants  were  in  no  respect  done  in  the  neces- 
sary or  proper  use  of  the  highway,  they  were  guilty  of  a  nuisance 
in  obstructing  the  use  of  it.  Ellis  v.  Sheffield  Gas  Consumers'  Com- 
pany, 2  E.  &  B.  767,  75  E.  C.  L.;  18  Jur.  146.  The  question  was 
again  much  considered  in  R.  v.  Longton  Gas  Company,  29  L.  J.,  M.  C. 
118,  and  a  similar  decision  was  come  to.  See  also  R.  t;.  Train,  31  L.  J.,  M. 
C.  169.  Provision  is  made  by  the  5  &  6  Will.  4,  c.  50,  ss.  64,  65,  QQ, 
and  the  27  &  28  Vict.  c.  101,  s.  51,  for  the  removal  of  many  such 
nuisances  as  are  above  mentioned,  and  for  imposing  a  penalty  upon 
the  persons  so  obstructing  the  highway. 

The  obstruction  of  a  navigable  river  is  likewise  a  public  nuisance, 
as  b}^  diverting  part  of  the  water  whereby  the  current  is  weakened, 
and  made  unable  to  carry  vessels  of  the  same  burthen  as  before. 
Hawk.  P.  C.b.  1,  c.  75,  s.  11.  The  building  of  a  bridge  partly  in 
the  bed  of  a  navigable  river  will  be  a  nuisance  if  it  obstruct  the  naviga- 
tion, but  not  otherwise.'  R.  v.  Betts,  16  Q.  B.  1022,  71  E.  C.  L. 
See  also  York  and  North  INIidland  Railwav  Co.  v.  Reg.  (in  error),  7 
Railw.  Cas.  459.  In  R.  v.  Russell,  3  El.  &"B1.  942,  77  E.  C.  L.;  23 
L.  J.,  Q.  B.  173,  the  jury  found  that  the  obstruction,  "although  a 
nuisance,  was  not  sufficiently  so  as  to  render  the  defendant  criminally 
liable,"  upon  which  the  judge  directed  a  verdict  of  acquittal,  and  the 
Court  of  Queen's  Bench  held,  that  the  jury  must  be  understood  as  find- 
ing that  the  obstruction  in  question  was  so  insignificant  as  not  to  consti- 
tute a  nuisance,  and  refused  to  disturb  the  verdict.  But  if  a  vessel  sink 
by  accident  in  a  navigable  river,  the  owner  is  not  indictable  as  for  a 
nuisance  in  not  removing  it.  R.  v.  Watt,  3  Esp.  675.  Where  on  the 
trial  of  an  indictment  for  a  nuisance  by  erecting  and  continuing  piles  and 

'  A  crib  and  pier  erected  in  the  waters  of  the  New  York  harbor,  are  a  purpresture 
and  per  se  a  public  nuisance.  People  v.  Vanderbilt,  28  N.  Y.  396.  A  party  maintaining 
a  dam  creatinjif  a  nuisance  no  greater  nor  of  any  different  character  from  what  would 
have  existed  without  it,  is  not  punishable  therefor.  Beach  v.  People,  11  Mich.  106.  S. 


HIGHWAYS — NUISANCE.  785 

planking  in  a  harbor,  and  thereby  obstructing  it  ancV rendering  it  inse- 
cure, a  special  verdict  was  found,  that  by  the  defendant's  works  the  har- 
bor was  in  some  extreme  cases  rendered  less  se(!ure ;  it  was  held,  that 
*the  defendant  was  not  responsible  criminally  for  consequences  r^^oi 
so  slight,  uncertain  and  rare,  and  that  a  vei-dict  of  not  guilty  L 
must  he  entered.  R.  v.  Tindall,  6  A.  &  E.  143,  P>r,  E.  C.  L.  Where 
a  staith  was  erected  stretching  into  the  river  Tyne,  and  used  in  ship- 
ping coals,  whereby  the  public  had  a  better  and  cheaper  sup})ly  of  that 
article,  it  was  held  to  be  no  nuisance,  diss.  Lord  Tcnterden,  R.  v.  Rus- 
sell, 6  B.  &  C.  566,  13  E.  C.  L.  ;  9  D.  &  R.  566.  But  see  R.  v. 
Ward  and  other  cases,  post.  In  R.  v.  Russell,  it  was  said  by  Mr.  Jus- 
tice Bay  ley,  in  his  summing  up  to  the  jury,  that  where  a  great  public 
benefit  accrues  from  that  which  occasions  the  abridgment  of  the  right 
of  passage,  that  abridgment  is  not  a  nuisance,  but  proper  and  benefi- 
cial ;  and  he  directed  the  jury  to  find  a  verdict  for  the  defendants,  if 
they  thought  the  abridgment  of  the  right  of  passage  was  for  a  public 
purpose,  and  produced  a  public  benefit,  and  if  it  was  in  a  reasonable 
situation,  and  if  a  reasonable  space  was  left  for  the  passage  of  vessels 
navigating  the  river  Tyne.  On  a  motion  for  a  new  trial,  the  Court  of 
King's  Bench,  with  the  exception  of  Lord  Tenterden,  held  this  direc- 
tion right.  Lord  Tenterden  said,  "  Admitting  there  was  some  public 
benefit  both  from  the  price  and  condition  of  the  coals,  still  I  must  own 
that  I  do  not  think  those  points  could  be  properly  taken  into  consid- 
eration, in  the  question  raised  by  this  indictment.  That  question  I  take 
properly  to  have  been,  whether  the  navigation  and  passage  of  the  ves- 
sels on  the  public  navigable  river  was  injured  by  these  erections." 
Where  the  lessee  of  the  corporation  of  London,  the  conservators  of 
the  river  Thames,  erected  a  wharf  between  high  and  low  water  mark, 
extending  for  a  considerable  space  along  the  river ;  upon  an  indict- 
ment for  a  nuisance,  it  was  contended,  that  as  claiming  under  the  cor- 
poration, the  party  had  a  right  to  make  the  wharf.  But  Abbott,  C.  J., 
said,  "  Will  3'^ou  contend  that  you  have  a  right  to  narrow  the  river 
Thames,  so  long  as  you  have  space  sufficient  for  the  purposes  of  navi- 
gation ?"  The  argument  that  the  wharf  was  a  public  benefit  was  then 
adv^anced  ;  but  the  Chief  Justice  said,  "  Much  evidence  has  been  ad- 
duced on  the  part  of  the  defendant,  for  the  purpose  of  showing  that 
the  alteration  affords  great  facility  and  convenience  for  loading  and 
unloading  ;  but  the  question  is,  not  whether  any  private  advantage 
had  resulted  from  the  alterations  to  any  particular  individual,  but 
whether  the  convenience  of  the  public  at  large,  or  of  that  portion  of 
it  which  is  interested  in  the  navigation  of  the  river  Thames,  has  been 
affected  or  diminished  by  this  alteration."^  R.  v.  Lord  Grosvenor,  2 
Stark,  511,  3  E.  C.  L.  R,  v.  Russell  has  been  overruled  by  several 
later  decisions.  On  an  indictment  for  a  nuisance  in  a  navigable  river 
and  common  king's  highway,  called  the  harbor  of  C,  by  erecting  an 
embankment  in  the  water-way,  the  jury  found  that  the  embank- 
ment was  a  nuisance,  but  was  counterbalanced  by  the  public  benefit 

*  Eesp.  v.  Caldwell,  1  Dall.  150 ;  Angell  on  Tide  Waters,  c.  8 ;  Commonwealth  v. 
Wright,  3  Am.  Jur.  185.    S. 
50 


786  HIGHWAYS — NUISANCE. 

arising  from  the  alteration.  It  was  held  by  the  Court  of  King's 
Bench,  that  this  finding  amounted  to  a  verdict  of  guilty,  and  that  it  is 
no  defence  to  such  an  indictment,  that  although  the  work  be  in  some 
degree  a  hindrance  to  navigation,  it  is  advantageous,  in  a  greater  de- 
gree, to  other  uses  of  the  port.  R.  v.  Ward,  4  A.  &  E.  384,  31  E.  C. 
L.;  and  see  R.  v.  Morris,  1  B.  &  Ad.  441,  20  E.  C.  L.;  R.  v.  Ran- 
dall, Car.  &  M.  496,  41  E.  C.  L. ;  and  Atty.-Gen.  v.  Terry,  L.  R.  9 
Ch.  423,  per  Jessel,  M.  R.,  425.  Where  the  crown  has  no  right  to 
obstruct  the  whole  passage  of  a  navigable  river,  it  has  no  right  to 
erect  a  weir  to  obstruct  a  part,  except  subject  to  the  rights  of  the  pub- 
lic, and  therefore  the  weir  would  become  illegal  if  those  rights  are 
^„.^^-,  *interfered  with.  Williams  v.  Wilcox,  8  A.  &  E.  314,  35  E. 
^^"-1  C.  L.  See  R.  v.  The  United  Kingdom  Electric  Telegraph  Co., 
and  R.  v.  Train,  supra.  Where  the  defendant's  workmen  stacked  the 
refuse  of  the  colliery  so  as  to  obstruct  a  navigable  river,  it  was  held 
that  the  defendant's  orders  to  the  contrary  and  his  absence  from  per- 
sonal superintendence  did  not  relieve  him  from  liability.  R.  v.  Ste- 
phens, L.  R.  1  Q.  B.  702;  35  L.  J.,  Q.  B.  251. 

Proof  of  the  nuisance — authorized  by  an  Act  of  Parliament.  By 

an  Act  reciting  that  a  railway  between  certain  points  would  be  of 
great  public  utility,  and  would  materially  assist  the  agricultural  in- 
terest and  the  general  traffic  of  the  country,  power  was  given  to  a 
company  to  make  such  railway  according  to  a  plan  deposited  with 
the  clerk  of  the  peace,  from  which  they  were  not  to  deviate  more 
than  one  hundred  yards.  By  a  subsequent  Act,  the  company  or 
persons  authorized  by  them  were  empowered  to  use  locomotive  en- 
gines upon  the  railway.  The  railway  was  made  parallel  and  adja- 
cent to  an  ancient  highway,  and  in  some  cases  came  within  five 
yards  of  it.  It  did  not  appear  whether  or  not  the  line  could  have 
been  made  in  those  instances  to  pass  at  a  greater  distance.  The 
locomotive  engines  on  the  railway  frightened  the  horses  of  persons 
using  the  highway  as  a  carriage-road.  On  an  indictment  against  the 
company  for  a  nuisance,  it  was  held,  that  this  interference  with  the 
rights  of  the  public  must  be  taken  to  have  been  contemplated  and 
sanctioned  by  the  legislature,  since  the  words  of  the  statute  authoriz- 
ing the  use  of  the  engines  were  unqualified :  and  the  public  benefit 
derived  from  the  railway,  whether  it  would  have  excused  the  alleged 
nuisance  at  common  law  or  not  (see  R.  v.  Ward,  supra),  showed,  at 
least,  that  there  was  nothing  unreasonable  in  a  clause  of  an  Act  of 
parliament  giving  such  unqualified  authority.  R.  v.  Pease,  4  B.  & 
Ad.  30,  24  E.  C.  L. 

But  where  a  railway  company  are  authorized  by  Act  of  parliament 
to  obstruct  public  or  private  roads  only  on  conditions  which  they  have 
not  performed,  they  may  be  indicted  for  a  nuisance  on  the  old  highway. 
R.  V.  Scott,  3  Q.  B.  543,  43  E.  C.  L.;  and  see  R.  v.  Rigby,  14  Q.  B. 
687,  68  E.  C.  L.  So  also  where  water  authorities  or  others  interfere 
lawfully  with  the  highway,  they  are  bound  to  see  that  they  do  not 
create  a  nuisance.     White  v.  Hindley,  L.  R.  10  Q.  B.  219  ;  44  L.  J., 


HIGHWAYS — NUISANCE.  787 

Q.  B.  114;  Kent  V.  Worthing  Local  Board,  10  Q.  B.  D.  118;  52 
L.  J.,  Q.  B.  77  ;  Blackraore  v.  Mile  End  Old  Town,  9  Q.  B.  D.  451  ; 
51  L.  J.,  Q.  B.  496. 

Where  an  Act  of  parliament  authorizes  alterations  in  a  highway, 
they  must  be  made  with  reasonable  care,  and  if  not,  the  contractor  is 
liable  to  be  indicted  for  obstructing  the  highway.  R.  v.  Burt,  11  Cox 
C.  C.  399. 

Proofof  the  nuisance — whether  justifiable  from  necessity.  It  not 
unfrequently  becomes  a  question,  whether  the  obstruction  complained 
of  is  justifiable  by  reason  of  the  necessity  of  the  case,  as  when  it 
occurs  in  the  usual  and  necessary  course  of  the  party's  lawful  busi- 
ness. The  defendant,  a  timber-merchant,  occupied  a  small  timber- 
yard  close  to  the  street ;  and  from  the  small ness  of  his  premises, 
he  was  obliged  to  deposit  the  long  pieces  of  timber  in  the  street, 
and  to  have  them  sawed  up  there  before  they  cx)uld  be  carried 
into  the  yard.  It  was  argued,  that  this  was  necessary  for  his  trade, 
and  that  it  occasioned  no  more  inconvenience  than  draymen  letting 
*down  hogsheads  of  beer  into  the  cellar  of  a  publican.  But  r*/^9q 
Lord  Ellenborough  said,  "  If  an  unreasonable  time  is  occupied  L 
in  the  operation  of  delivering  beer  from  a  brewer's  dray  into  the  cel- 
lar of  a  publican,  this  is  certainly  a  nuisance.  A  cart  or  wagon  may 
be  unloaded  at  a  gateway,  but  this  must  be  done  with  promptness.  So 
as  to  the  repairing  of  a  house  ;  the  public  must  submit  to  the  inconve- 
nience occasioned  necessarily  in  repairing  the  house ;  but  if  this  incon- 
venience be  prolonged  for  an  unreasonable  time,  the  public  have  a 
right  to  complain,  and  the  party  may  be  indicted  for  a  nuisance.  The 
defendant  is  not  to  eke  out  the  inconvenience  of  his  own  premises  by 
taking  the  public  highway  into  his  timber-yard  ;  and  if  the  street  be 
narrow,  he  must  remove  to  a  more  commodious  situation  for  carrying 
on  his  business."  R.  v.  Jones,  3  Campb.  230 ;  Fritz  v.  Hobson,  14 
Ch.  D.  542  ;  49  L.  J.,  Ch.  321.  So  although  a  person  who  is  rebuilding 
a  house  is  justified  in  erecting  a  hoard  in  the  street,  which  serves  as  a 
protection  to  the  public,  yet,  if  it  encroach  unreasonably  upon  the 
highway,  it  is  a  nuisance.'  See  Bush  v.  Steinman,  1  Bos.  &  Pul.  404  ; 
R.  V.  Russell,  6  East,  427,  ante,  p.  619.  See  this  point  discussed  in 
R.  V.  Longton  Gas  Co.,  29  L.  J.,  M.  C.  118. 

Judgment  and  sentence.  Where  a  defendant  indicted  for  a  nui- 
sance to  a  navigable  river  allowed  judgment  to  go  by  default,  and  was 
under  no  recognizances  to  appear  in  the  Court  of  Queen's  Bench  for 
judgment,  the  court  would  not,  in  his  absence,  give  judgment  that  the 
nuisance  should  be  abated,  although  notice  had  been  left  at  his  residence 
of  the  intention  of  the  crown  to  pray  for  judgment,  the  proper  course 
being  to  sue  out  a  writ  of  capiat  and  proceed  to  outlawry.  R.  v.  Chi- 
chester, 2  Den.  C.  C.  R.  458. 

Abatement  of  nuisance.  As  to  the  abatement  of  nuisances,  see 
pody  tit.  "  Nuisance." 

^  Commonwealth  v.  Passmore,  1  Serg..&  fiawle,,217.    S. 


788  HIGHWAYS — NUISANTE. 


NOT    REPAIRING    HIGHWAYS. 


Upon  an  indictment  for  not  repairing  a  highway,  to  which  the 
general  issue  is  pleaded,  the  prosecutor  must  j)rove  :  1st,  that  the 
way  in  question  is  a  public  highway  (vide,  ante,  pp.  013,  et  seq.),  and 
that  it  agrees  Avith  the  description  of  the  way  in  the  indictment 
(ante,  p.  618)  ;  2udly,  that  it  is  within  the  parish  or  other  district 
charged ;  3rdly,  that  it  is  out  of  repair ;  and  4thly,  where  the 
charge  is  not  upon  the  parish,  but  against  common  right,  as  upon  an 
individual  ratione  tenurce,  the  liability  of  the  party  to  make  the 
repairs. 

Proof  of  liability  to  repair — parish.  Parishes  of  common  right 
are  bound  to  repair  their  highways,  and  by  prescription  one  parish 
may  be  bound  to  repair  the  way  in  another  parish.  Per  Holt,  C.  J., 
R.  V.  Ragley,  12  Mod.  409  ;  Hawk.  P.  C.  b.  1,  c.  76  ;  R.  v.  Midville, 
4  Q.  B.  240,  31  E.  C.  L.  No  agreement  with  any  person  whatever  can 
take  off  this  charge.  1  Ventr.  90.  The  parish  generally,  and  not  the  over- 
seers, are  liable ;  and  an  indictment  against  the  latter  was  quashed. 
R.  V.  Dixon,  12  Mod.  198.  If  particular  persons  are  made  liable  by 
statute  to  repair,  and  become  insolvent,  the  parish  again  becomes 
liable.  1  Ld.  Raym.  725.  And  where  a  township,  which  has  been 
accustomed  to  repair  its  own  ways,  is  exempted  by  Act  of  parliament 
from  the  repair  of  a  certain  road,  the  liability  reverts  to  the  parish. 
*fi9n  *^'  ^'  Sheffield,  2  T.  R.  106.  The  parish  will  remain  liable, 
-•  though  the  duty  of  repairing  may  likewise  be  imposed  upon 
others.  Thus  where  a  statute  enacted,  that  the  paving  of  a  particular 
street  should  be  under  the  care  of  commissioners,  and  provided  a  fund 
to  be  applied  to  that  purpose,  and  another  statute,  which  was  passed 
for  paving  the  streets  of  the  parish,  contained  a  clause  that  it  should 
not  extend  to  the  particular  street,  it  was  held,  that  the  inhabitants  of 
the  parish  were  not  exempted  from  their  common-law  liability  to  keep 
the  street  in  repair  ;  and  that  the  parish  was  under  the  obligation,  in 
the  first  instance,  of  seeing  that  the  street  was  properly  repaired,  and 
might  seek  a  remedy  over  against  the  commissioners.  R.  v.  St.  George's, 
Hanover  Square,  3  Campb.  222.  By  a  navigation  Act,  the  proprietors 
of  the  navigation  were  required  to  keep  a  road  in  repair,  and  were 
declared  to  be  liable  to  indictment  if  it  was  out  of  repair.  Coleridge, 
J.,  held  that  this  did  not  relieve  the  township  from  their  common-law 
liability.  R.  v.  Brightside  Bierlow,  13  Q.  B.  933,  66  E.  C.  L.;  19  L.  J., 
M.  C.  50.  So  where  the  trustees  of  a  turnpike  road  are  required  by  sta- 
tute to  make  the  repairs,  the  parish,  or  other  district,  is  not  exonerated, 
but  is  liable  to  be  indicted.  In  such  cases,  the  tolls,  granted  by 
the  Act,  are  only  an  auxiliary  and  subordinate  fund,  and  the  persons 
whom  the  public  have  a  right  to  look  to,  are  the  inhabitants  of 
the  district,  who  may  apply  for  relief  under  the  23rd  section  of  the 
General  Turnpike  Act.  R.  v.  Netherthong,  2  B.  &  A.  179  ;  see  also 
R.  V.  Oxfordshire,  4  B.  &  C.  194,  10  E.  C.  L.;  R.  v.  Preston,  2  Lew. 
Q.  C.  193  ;  R.  v.  Landsmere,  supra,  p.  614.  Nor  can  other  parties  ren- 


HIGHWAYS — XTTISANCE.  789 

der  themselves  liable  to  an  indictment  for  not  repairing  by  agreement. 
Thus  an  indictment  against  the  corporation  of  Liverpool,  stating  that 
they  were  liable  to  repair  a  certain  highway,  by  reason  of  an  agreement 
with  the  owners  of  houses  alongside  of  it,  was  held  bad,  because  the 
inhabitants  of  the  parish,  who  are  primd  facie  bound  to  re})air  all  ways 
within  their  boundaries,  cannot  be  discharged  from  their  liability  by  an 
agreement  with  others.     R.  v.  Mayor,  etc.,  of  Liverpool,  3  East,  80. 

If  the  repairs  are  done  by  a  parishioner,  under  an  agreement  with 
the  parish,  in  consideration  of  his  being  excused  his  statute  duty,  that 
is  virtually  a  repaii-  bv  the  parish.  Per  Loiti  Ellenborough,  li.  v. 
Wandsworth,  1  B.  &  Aid.  GQ. 

Where  by  Act  of  parliament  trustees  are  authorized  to  make  a  road 
from  one  point  to  another,  the  making  of  the  entire  road  is  a  con- 
dition precedent  to  any  part  of  it  becoming  a  highway  repairable 
by  the  public.  An  indictment  charged  a  township  with  the  non- 
repair of  a  highway ;  and  it  appeared  in  evidence,  that  the  road  in 
question  was  begun  six  years  before,  under  a  local  turnpike  Act ; 
that  the  trustees  had  finished  it  all  but  about  300  yards  at  one  end  of 
the  line,  and  one  mile  at  the  other  (both  out  of  the  township), 
fenced  Avhat  they  had  made,  put  up  two  turnpike-gates,  and  taken 
toll ;  that  the  road  Avas  convenient,  much  used  by  the  public,  and 
leading  at  each  end  into  old,  open  and  public  highways  ;  but  it  was  held 
by  Hullock,  B.,that  the  indictment  was  premature,  the  trustees  not  hav- 
ing finished  their  road  according  to  the  Act  of  parliament,  and  conse- 
quently that  it  Av^as  no  public  highway.  R.  v.  Hepworth,  cited  3  B.  & 
Adol.  110,  23  E.  C.  L.;  1  Lewin,  C.  C.  1 60.  So  where  trustees  empow- 
ered by  Act  of  parliament  to  make  a  road  from  A.  to  B.  (being  in  length 
twelve  miles),  completed  eleven  miles  and  a  half  of  such  road  to  a  point 
where  it  intersected  a  public  highway ;  it  was  held,  that  the  district 
*in  which  the  part  so  completed  lay  was  not  bound  to  rejiair  it.  rjH/^or 
R.  V,  Cumberworth,  3  B.  &  Ad.  108,  23  E.  C.  L.;  and  see  •-  ^"^^ 
R.  V.  Paddington  Vestrv,  9  B.  &  C.  460,  17  E.  C.  L.;  R.  v.  Hatfield, 
4  A.  &  E.  156,  31  E.  C.  L.;  R.  v.  Edge  Lane,  Id.  723 ;  R.  v.  Cum- 
berworth, Id.  731. 

It  was  for  some  time  a  matter  of  doubt  whether,  where  an  individ- 
ual dedicated  a  way  to  the  public,  and  the  public  used  such  way,  the 
parish  in  which  it  was  situated  was  bound  to  repair  it,  without  any 
adoption  of  it  on  their  part.  In  the  case  of  R.  v.  St.  Benedict,  4  B. 
&  Aid.  447,  6  E.  C.  L.,  an  opinion  Avas  expressed  by  Bayley,  J.,  that 
the  parish  was  not  liable ;  but  this  doctrine  was  denied  in  a  late  case, 
and  it  was  held,  that  no  distinct  act  of  adoption  was  necessary,  in  order 
to  make  a  parish  liable  to  repair  a  public  road  ;  but  that,  if  the  road 
is  public,  the  parish  is  of  common  right  bound  to  repair  it.  R.  v. 
Leake,  5  B.  &  Ad.  469,  27  E.  C.  L.;  2  Nev.  &  M.  583  ;  R.  v.  Lands- 
mere,  15  Q.  B.  689,  69  E.  C.  L.;  19  L.  J.,  M.  C.  215,  supra,  p.  614; 
see  also  R.  v.  The  Paddington  Vestrv,  9  B.  <&  C.  456,  17  E.  C.  L.; 
R.  V.  Inhabitants  of  Bradfield,  L.  R.  9  Q.  B.  552;  43  L.  J.,  M.  C. 
155.     See  now  ante,  p.  615,  5  &  6  Will.  4,  c.  50,  s.  23. 

This  section  does  not  prevent  the  way  from  becoming  public,  but 


790  HIGHWAYS — NUISANCE. 

only  exempts  the  parish  from  repair  where  its  conditions  are  not  com- 
plied with.  A  party  obstructing  a  public  road  not  within  the  section 
would  still  be  liable  for  so  doing,  though  no  one  would  be  liable  for  a 
mere  want  of  repair.  Roberts  v.  Hunt,  15  Q.  B.  17,  69  E.  C.  L.; 
R.  V.  Wilson,  18  Q.  B.  348,  83  E.  C.  L. 

Where  a  parish  is  situated  partly  in  one  county  and  partly  in 
another,  and  a  highway,  lying  in  one  of  those  parts,  is  out  of  repair, 
tiie  indictment  must  be  against  the  whole  parish,  and  must  be  preferred 
in  that  county  in  which  tlie  ruinous  part  lies.  R.  v.  Clifton,  5  T.  R. 
498.  By  the  5  &  6  Will.  4,  c.  50,  s.  58,  where  a  highway  lies  in  two 
parishes,  justices  of  the  peace  are  to  determine  what  parts  shall  be  re- 
paired by  each ;  and  by  s.  59,  parishes  are  bound  to  repair  the  part 
aUotted  to  them.  The  same  proceeding  may  be  adopted  in  the  case  of 
highways  repairable  by  bodies  politic  or  corporate,  or  private  persons, 
ratione  tenurce. 

Where  a  question  arises  as  to  the  road  being  within  the  boundaries 
of  the  parish,  it  is  sometimes  necessary  to  prove  these  boundaries,  by 
giving  in  evidence  the  award  of  commissioners  appointed  to  set  them 
out.  In  such  case,  it  must  be  shown  that  the  award  of  the  commis- 
sioners pursues  their  authority.  By  an  inclosure  Act,  commissioners 
were  directed  to  fix  the  boundaries  of  a  parish,  and  to  advertise  in  a 
provincial  newspaper  such  boundaries.  The  boundaries  were  also  to  be 
inserted  in  the  award  of  the  commissioners,  and  to  be  conclusive.  The 
boundaries  in  the  award  varying  from  those  in  the  newspaper,  it  was 
held  that  the  commissioners  had  not  pursued  their  authority,  and  the 
award  was  not  binding  as  to  tlie  boundaries  of  tlie  parish.  R.  v. 
Washbrook,  4  B.  &  C!  732,  10  E.  C.  L.  By  a  similar  Act,  commis- 
sioners had  power  to  settle  the  boundaries  of  certain  parishes,  upon 
giving  certain  previous  notices  to  the  parishes  to  be  affected  by  the 
award.  The  highway  in  question  never  having  been  required  by  the 
parish  to  which  it  was  allotted,  the  judge  refused  to  admit  the  award  in 
evidence  until  the  requisite  notices  were  proved  to  have  been  given ; 
and  upon  an  application  for  a  new  trial,  it  was  refused.  R.  v. 
Hastingfield,  2  M.  &  S.  558.  AVhere  two  parishes  are  separated  by 
a  river,  the  medium  jilum  is  the  boundary.  R.  v.  Landulph,  1  Moo. 
&  R.  393. 

*P9n  *0\\  the  trial  of  an  indictment  for  the  non-repair  of  a  high- 
J  way,  a  map  of  the  parish  produced  from  the  parish  chest, 
which  map  was  made  under  an  inclosure  Act  (which  was  a  private  Act 
not  printed),  is  not  receivable  in  evidence  to  show  the  boundaries  of 
the  parish,  without  proof  of  the  inclosure  Act.  Per  Erskine,  J.,  R.  v. 
Inhab.  of  Milton,  1  C.  &  K.  58,  47  E.  C.  L.  In  that  case  it  was 
proved  by  the  surveyor,  who  made  the  map  thirty-four  years  before 
the  trial,  that  he  laid  down  the  boundaries  of  the  parish  from  the  in- 
formation of  an  old  man,  then  about  sixty,  who  went  round  and  showed 
them  to  him.  The  learned  judge  held,  that  the  map  would  have  been 
receivable  as  evidence  of  reputation,  if  it  had  been  also  proved  that  the 
old  man  was  dead,  but  that,  without  proof  of  his  death,  it  was  not  ad- 
missible. 


HIGHWAYS — NUISANCE.  7D1 

Where  a  highway  crosses  the  bed  of  a  river  which  washes  over  it  and 
leaves  a  deposit  of  mud,  it  seems  the  parish  is  not  bound  to  repair  that 
part.  R.  V.  Landulph,  1  Moo.  &  R.  393.  On  an  indictment  for  the 
non-repair  of  a  highway,  in  the  ordinary  form,  a  parish  cannot  be 
convicted  for  not  rebuilding  a  sea-wall  washed  away  by  the  sea, 
over  the  top  of  which  the  alleged  way  used  to  pass.  R.  v.  Paul, 
2  Moo.  &  R.  307. 

Upon  an  indictment  for  non-repair  of  a  public  highway,  it  appeared 
that  the  way  was  an  ancient  highway.  Eighteen  years  before  the  in- 
dicted parish  wherein  the  road  Avas  situate  was  inclosed  under  the  6  & 

7  Will.  4,  c.  115.  Before  the  award  the  commissioners  made  an  alter- 
ation in  the  original  road  by  straightening  and  widening  it,  but  the 
whole  of  the  original  road  was  comprehended  in  the  existing  road  as 
set  out  in  the  award.  Both  before  and  since  the  award  the  pari!?h  had 
repaired  the  road,  but  no  steps  had  ever  been  taken  by  the  commis- 
sioners for  putting  the  road  into  complete  repair  (see  41  Geo.  3,  c.  109, 
ss.  8  &  9) :  nor  was  there  any  declaration  by  justices  that  it  had  been 
fully  completed  and  repaired,  and  no  proceedings  had  been  taken  under 

5  &  6  Will.  4,  c.  50,  s.  3  (now  repealed),  supra.  The  road  passed 
through  allotable  land  on  both  sides,  except  as  to  a  small  portion  on 
one  side  which  was  an  old  inclosure.  It  was  held  that  the  parish  was 
not  liable  to  repair  this  road.  R.  v.  Inhab.  of  East  Hagbourne,  1  Bell, 
C,  C.  135;  28L.  J.,  M.  C.  71. 

Evidence  that  a  parish  did  not  put  guard  fences  at  the  side  of  a  road, 
is  not  receivable  on  an  indictment  which  charges  that  the  king's  subjects 
could  not  pass  as  "  they  were  wont  to  do,"  if  no  such  fences  existed  be- 
fore.    R.  V.  Whitney,  7  C.  &  P.  208,  32  E.  C.  L. 

An  indictment  for  non-repair  of  a  highway,  describing  the  way 
as  immemorial,  is  not  supported  by  proof  of  a  highway  extinguished 
as  such  sixty  years  before  by  an  inclosure  Act,  but  since  used  by  the 
public  and  repaired  by  the  district  charged.     R.  v.  Westmark,  2  Moo. 

6  R.  305. 

Proof  of  liability  to  repair — inclosure.  Where  tne  owner  of 
lands  not  inclosed,  next  adjoining  to  a  highway,  incloses  his  land  on 
both  sides  of  the  way,  he  is  bound  to  make  the  road  a  'perfect  good  way, 
and  shall  not  be  excused  by  making  it  as  good  as  it  was  before  the  in- 
closure, if  it  were  then  defective ;  because,  before  the  inclosure,  the 
public  used,  where  the  road  was  bad,  to  go,  for  their  better  passage, 
over  the  fields  adjoining,  which  liberty  is  taken  away.  And  if  the 
owner  inclose  on  one  side  only,  he  is  bound  to  repair  the  whole, 
if  there  be  an  ancient  inclosure  on  the  other  side ;  but  if  there  be  not 
such  an  ancient  inclosure,  he  is  bound  only  to  repair  half;  and 
*upon  laying  open  the  inclosure,  he  is  freed,  as  seems,  altogether  r*/>07 
from  the  liability  to  repair.     Hawk.  P.  C.  b.  1,  c.  76,  ss.  6,  7,   '- 

8  ;  3  Bac.  Ab.  "  Highways  "  (F.);  1  Russ.  Cri.  487,  5th  ed.;  Wellbe- 
loved  on  Highways,  90  ;  2  Wms.  Saund.  160  a.  n.  (12);  Woolrych  on 
Ways,  80.  But  where  a  highway  is  inclosed  under  the  directions  of 
an  Act  of  parliament  for  dividing  and  inclosing  common  fields,  the 


792  HIGHWAYS — NUISANCE. 

party  inclosing  the  way  is  not  bound  to  repair,  R.  v.  Flecknow,  1 
Burr.  461.  And  so  also  with  regard  to  a  road  made  in  pursuance 
of  a  writ  of  ad  quod  damnum.  Ex  parte  Venner,  3  Atk.  772  ;  Hawk. 
P.  C.  b.  1,  c.  76,  s.  7. 

As  to  the  liability  of  an  individual  to  repair  a  highway  ratione 
clausurce,  see  R.  v.  Sir  J.  W.  Ramsden,  27  L.  J.,  M.  C.  296,  where  it 
was  held  that  the  liability  fell  upon  the  owner  and  not  upon  the  occu- 
pier. It  seems  also  that  it  only  arises  in  the  case  of  land  inclosed 
abutting  on  an  immemorial  highway,  and  which  but  for  the  inclosure 
might  have  been  used  as  a  highway.  But  see  now  25  &  26  Vict.  c. 
61,  s.  46,  as  to  highway  districts. 

Proof  of  liability  to  repair — particular  districts  by  custom. 
Altliough  primd  facie  the  parish  is  bound  to  repair  all  the  ways 
within  the  boundaries,  yet  other  bodies  or  individuals  may  be  liable 
to  such  repairs,  to  the  exoneration  of  the  parish.  Thus  a  township, 
or  other  particular  district,  may,  by  custom,  be  liable  to  repair ;  and 
it  is  sufficient  to  state  in  the  indictment,  that  the  township  has  been 
used  and  accustomed  to  repair,  and  of  right  ought  to  repair.  R.  v. 
Ecclesfield,  1  B.  &  A.  348  ;  R.  v.  West  Riding  of  Yorkshire,  4  B.  & 
A.  623,  6  E.  C.  L.;  R.  v.  Heap,  2Q.  B.  128,  42  E.  C.  L.  But  where 
an  indictment  charged  that  the  inhabitants  of  the  townships  of  Bond- 
gate  in  Auckland,  Newgate  in  Auckland,  and  the  borough  of  Auck- 
land, in  the  parish  of  St.  Andrew,  Auckland,  were  immeraorially  lia- 
ble to  repair  a  highway  in  the  town  of  Bishop  Auckland,  in  the  parish 
of  St.  Andrew,  Auckland,  and  no  consideration  was  laid  for  such  lia- 
bility ;  the  indictment  was  held  bad  in  arrest  of  judgment  as  not  show- 
ing that  the  highway  was  within  the  defendant's  district.  But  it  was 
held  to  be  no  objection  that  the  inhabitants  of  the  three  townships 
were  charged  conjointly.  R.  i\  Inhab.  of  Auckland,  1  A.  &  E.  744, 
28  E.  C.  L.  It  seems  doubtful  whether  one  parish  can  be  bound  by 
prescription  to  repair  the  roads  in  another  parish.  R.  v.  Ashby-Fol- 
ville,  infra. 

Where  it  aj>pears  that  a  township  has  been  used  immemorial  ly  to 
repair  all  roads  within  it,  such  township  is  ];)]aced,  as  to  repairs,  in 
the  same  situation  as  a  parish,  and  cannot  discharge  itself  from  its  lia- 
bility without  showing  that  some  other  p<'rsons,  in  certainty,  are  liable 
to  the  repairs.  R.  v.  Hatfield,  4  B.  &  A.  75,  6  E.  C.  L.;  R.  v.  Ardsley, 
3  Q.  B.  D.  255 ;  47  L.  J.,  M.  C.  65  ;  R.  v.  Ashby-Folville,  L.  H.'l 
Q.  B.  213  ;  35  L.  J.,  M.C.  154.  Where  a  new  way  is  made  within  the 
limits  of  the  township,  and  which,  had  the  parish  been  bound  to  repaii', 
must  have  been  repaircfl  by  the  parish,  such  way  must  be  repaired  bvtho 
township.  R.  v.  Ecclesfield,  1  B.  &  A.  338 ;  R.  v.  Netherthong,  2  B.  & 
A.  179.  It  appears  that  the  liability  of  a  township,  or  other  district, 
has  its  origin  in  custom  rather  than  in  prescription  ;  a  prescrij)tion 
being  alleged  in  the  person,  a  custom  in  the  land  or  place ;  and  the 
obligation  to  repair  is  of  a  local,  and  not  of  a  personal  nature.  R.  v. 
Ecclesfield,  1  B.  &  A.  348.  So  it  is  said  by  Bay  ley,  J.,  that  a  parish 
cannot  be  bound  by  prescription ;  for  individuals  in  a  parish  cannot 


HIGHWAYS — NUISANCE.  793 

bind  their  successors.  R.  v.  St.  Giles,  Cambridge,  5  M.  &  S.  260.  See 
R.  V.  Ashby-Folville,  supra.     The  inhabitants  of  a  township,  or  other 
*district,  cannot  be  charged  to  repair  ratione  tenurce  ;  for  unin-   t^^qq 
corpo rated  inhabitants  cannot,  as  inhabitants,  hold  lands.  R.  v.    L 
Machynlleth,  2  B.  &  C.  166,  9  E.  C.  L. 

To  charge  a  township  with  liability  by  custom  to  repair  all  high- 
ways within  it,  which  would  otherwise  be  repairable  by  the  parish 
comprising  such  township,  it  is  not  necessary  to  prove  that  there  are, 
or  have  been,  ancient  higliAvays  in  the  township.  Without  su{*h  proof 
a  jury  may  infer  the  custom  from  other  evidence.  As  that  the 
parish  consists  of  five  townships,  one  of  which  is  the  township  in 
question ;  that  four  have  always  repaired  their  own  highways ;  that 
no  surveyor  has  ever  been  appointed  for  the  parish,  and  that  the 
township  in  question  has  repaired  a  highway  lately  formed  within  it. 
R.  V.  Barnoldswick,  4  Q.  B.  499,  45  E.  C.  L.  See  also  R.  v.  Mid- 
ville,  Id.  240. 

Upon  an  indictment  against  the  inhabitants  of  the  township  of  H., 
for  the  non-repair  of  a  highway,  a  prior  judgment  of  quarter  sessions 
upon  a  presentment  by  a  justice  under  the  13  Geo.  3,  c.  78,  (repealed) 
for  non-repair  of  the  same  highway  by  H.,  and  which  presentment 
alleged  that  the  highway  was  in  H.,  and  that  H.  was  liable  to  repair 
it, — it  appearing  by  the  judgment  that  two  of  the  inhabitants  of  H. 
had  appeared  and  pleaded  guilty,  and  that  a  fine  was  imposed, — 
was  held  to  be  conclusive  evidence  that  the  highway  was  in  H., 
and  that  H.  was  liable  to  repair  it.  R.  v.  Haughton,  1  El.  &  Bl. 
501,  72  E.  C.  L.;  22  L.  J.,  M.  C.  89.  Upon  an  appeal  against  the 
appointment  of  a  surveyor  of  the  highways  for  the  toAvnship  of  K.  N., 
the  sessions  found  that  the  parish  of  M.  consisted  of  two  townships ; 
that  surveyors  had  been  appointed  for  each ;  but,  latterly,  to  save  expense, 
there  had  been  two  surveyors  appointed  for  the  parish  at  large.  They 
likewise  found  that  each  acted  as  surveyor  in  his  OAvn  township  ;  that 
distinct  rates  had  been  made  for  each  township,  and  applied  distinctly 
to  the  repau's  of  the  highways  in  each  ;  that  the  surveyors  kept  distinct 
accounts  (which  were  examined  by  the  general  vestry),  and  that  the 
occupiers  of  lands  had  been  rated,  in  respect  of  their  occupation,  to  the 
repair  of  the  highways  of  that  township  in  M'hich  the  houses  they  re- 
sided in  were  situate.  Lord  Tenterden  said,  that  if  there  had  been  an 
indictment  against  either  township,  and  an  allegation  that  each  town- 
ship had  immemorially  repaired  the  roads  within  it,  these  facts  would 
be  sufficient  evidence  to  support  the  averment.  R.  v.  King's  Newton, 
1  B.  &  C.  826,  8  E.  C.  L.  On  an  issue,  whether  or  not  certain  land, 
in  a  district  repairing  its  own  roads,  was  a  common  highway,  it  is  ad- 
missible evidence  of  reputation  (though  slight)  that  the  inhabitants 
held  a  public  meeting  to  consider  of  repairing  such  way,  and  that  sev- 
eral of  them,  since  dead,  signed  a  paper  on  that  occasion,  stating  that 
the  land  was  not  a  public  highway,  there  being  at  the  time  no  litiga- 
tion on  the  subject.  Barraclough  v,  Johnson,  8  A.  &  E.  99,  35  E.  C. 
L.;  ante,  p.  615. 

It  seems  that  the  inliabitants  of  a  district,  not  included  within  any 


794  HIGHWAYS — NUISANCE. 

parish,  cannot  be  bonnd  to  repair  the  highways  within  such  district. 
This  point  arose,  bnt  was  not  decided  in  the  case  of  R..  v.  Kingsmoor,  2  B. 
&  C.  190,  9  E.  C,  L.,  which  was  an  indictment  against  an  extra- paro- 
chial hamlet.  The  court  held  that  it  should  have  been  shown  on  the  face 
of  the  indictment  that  the  hamlet  neither  formed  part  of,  nor  was  con- 
nected with  any  other  larger  district,  the  inhabitants  of  which  were 
liable  to  the  repair  of  the  road  in  question.  Upon  this  point  the 
judgment  for  the  crown  was  reversed  ;  but  Best,  J.,  observed,  "  I 
*fi9Ql  *^^"  ^"^  "^  authority  for  saying  that  anything  but  a  parish 
-I  can  be  charged.  If  the  law  authorizes  no  charge  except  upon 
parishes,  places  that  are  extra-parochial  are  not,  by  the  general  rule  of 
law,  liable."  See  the  observations  on  this  case  in  Wellbeloved  on 
Highways,  81. 

Proof  of  liability  to  repair — corporations.  A  corporation,  sole 
or  aggregate,  may  be  bound  by  prescription  or  usage  to  repair  a  high- 
way, without  showing  that  it  is  in  respect  either  of  tenure  or  of  any 
other  consideration.  Hawk.  P.  C.  b.  1,  c.  76,  s.  8 ;  R.  v.  St,  Giles, 
Cambridge,  5  M.  &  S.  260.  A  corporation  may  be  indicted  in  its 
corporate  name  for  non-repair  of  a  highway.  R.  v.  Mayor,  etc.,  of 
Liverpool,  3  East,  86 ;  R.  v.  Birmingham  &  Gloucester  Railway  Co., 
3  Q.  B.  223,  43  E.  C.  L. 

Proof  of  liability  to  repair — private  individuals.  A  jirivate 
individual  cannot  be  bound  to  repair  a  highway,  except  in  respect  of 
some  consideration,  and  not  merely  by  a  general  prescription,  because 
no  one,  it  is  said,  is  bound  to  do  what  his  ancestors  have  done,  except 
for  some  special  reason,  as  the  having  lands  descending  from  such 
ancestors  which  are  held  by  such  service,  etc.  Hawk.  P.  C.  b.  1,  c. 
76,  s.  8;  13  Rep.  33;  R.  v.  St.  Giles,  Cambridge,  5  M.  &  S.  260; 
Nichol  V.  Allen,  31  L.  J.,  Q.  B.  43 ;  R.  v.  Ardsley,  3  Q.  B.  D.  255 ; 
47  L.  J.,  M.  C.  75.  Yet  an  indictment  charging  a  tenant  in  fee 
simple  with  being  liable  to  repair,  by  I'eason  of  the  tenure  of  his  land, 
is  sufficiently  certain  without  adding  that  his  ancestors,  whose  estate 
he  has,  have  always  so  done,  which  is  implied  in  the  above  allegation. 
Hawk.  P.  C.  b.  1,  c.  76,  s.  8.  In  order  to  exempt  a  parish,  by  show- 
ing that  a  private  person  is  bound  to  repair,  it  must  be  shown  that 
the  burthen  is  cast  upon  such  other  person,  under  an  obligation 
equally  durable  with  that  which  would  have  bound  the  parish,  and 
which  obligation  must  arise  in  respect  of  some  consideration  of  a 
nature  as  durable  as  the  burthen.  Per  Lord  Ellenborough,  R.  v.  St. 
Giles,  Cambridge,  5  M.  &  S.  260.  Where  lands,  chargeable  with  the 
repairs  of  a  bridge  or  highway,  are  conveyed  to  different  persons,  each 
of  such  persons  is  liable  to  the  charge  of  all  the  repairs,  and  may 
have  contributions  from  the  others ;  for  the  law  will  not  suffer  the 
owner  to  apportion  the  charge,  and  thus  to  render  the  remedy  for  the 
public  more  difficult.  Therefore,  where  a  manor  thus  charged,  was 
conveyed  to  several  persons,  it  was  held  that  a  tenant  of  any  parcel, 
either  of  the  demesnes,  or  of  the  services,  was  liable  to  the  whole 


HIGHWAYS — NUISANCE.  795 

repairs.  And  the  grantees  are  cliargeable  with  the  repairs,  though  the 
grantor  should  convoy  the  lands  discharged  from  the  burthen,  in  which 
case,  the  grantee  has  his  remedy  over  against  the  grantor.  11.  v.  Duchess 
of  Buecleugh,  1  Salk.  358 ;  R.  v.  Buckeridge,  4  Mod.  48  ;  2  Saund. 
159  (n) ;  1  Russ.  Cri.  486,  otli  ed.  Where  a  navigation  company  was 
bound  under  an  Act  of  parliament  to  repair  a  highway,  on  an  indict- 
ment for  non-repair,  a  count  alleging  the  liability  to  repair  ratione 
tenurce  was  held  bad ;  but  one  alleging  their  liability  under  the  Act  was 
held  good.   R.  V.  Sheffield  Canal  Co.,  13  Q.  B.  913 ;  19  L.  J.,  M.  C.  44. 

Repairing  a  highway  for  a  length  of  time  will  be  evidence  of  a 
liability  to  repair  ratione  tenurce.  Thus,  if  a  person  charged  as  being 
bound  to  repair  ratione  tenurce,  pleads  that  the  liability  to  repair  arose 
from  an  encroachment  which  has  been  i-emoved,  and  it  appears  that 
the  road  has  been  repaired  by  the  defendant  twenty-five  years  since 
*the  removal  of  the  alleged  encroachments,  tlmt  is  presumptive  r^oork 
evidence  that  the  defendant  repaired  ratione  tenurce  generally,  •- 
and  renders  it  necessary  for  him  to  show  the  time  when  the  encroach- 
ment was  made.  R.  v.  Skinner,  5  Esp.  219;  1  Russ.  on  Cri.  487, 
5th  ed.  In  determining  whether  the  act  of  repairing  a  way  is  evi- 
dence to  prove  a  liability  to  repair  ratione  tenurce,  the  nature  of  the 
repairs  must  be  regarded.  Thus  it  is  said  by  Hullock,  B.,  that  an 
adjoining  occupier  occasionally  doing  repairs  for  his  own  convenience 
to  go  and  come,  is  no  more  like  that  sort  of  repair  which  makes  a 
man  liable  ratione  tenurce,  than  the  repair  by  an  individual  of  a  road 
close  to  his  door,  is  to  the  repair  of  the  road  outside  his  gate.  R.  v. 
Allanson,  1  Lewin,  C.  C.  158.  In  R.  v.  Blakemore,  2  Den.  C.  C.  R. 
410  ;  21  L.  J.,  M.  C  60,  evidence  was  given  of  the  conviction  of  a 
former  owner  and  occupier  of  the  lands  in  respect  of  which  the  liability 
was  said  to  arise,  for  the  non-re|)air  of  the  same  highway,  which 
showed  that  he  had  pleaded  guilty  to  a  presentment  against  him, 
alleging  his  liability  to  repair  the  highway.  Repairs  by  occujiiers  of 
the  same  lands  subsequently  to  this  conviction  were  also  proved  ;  and 
evidence  was  given  that  the  defendant  purchased  these  lands  after 
public  notice  of  the  liability  to  repair  the  higlnvay,  and  that  he  was 
the  owner  and  occupier  of  the  same  ;  it  wa.?  held  that  there  was  evi- 
dence to  go  to  the  jury  of  immemorial  usage  and  liability  ratione 
tenurce.  An  indictment  for  the  non-repair  of  a  highway  in  the  parish 
of  A.,  alleging  the  liability  by  reason  of  the  tenure  of  certain  lands 
in  the  said  parish,  is  not  suppoi-ted  by  proof  of  a  liability  to  repair  a 
road  extending  through  A.  and  other  parishes  by  reason  of  the 
tenure  of  a  farm  made  up  of  land  in  A.  and  the  other  parishes.  R.  v. 
Mizen,  2  Moo.  &  R.  382.  See  also  R.  v.  Haughton,  1  E.  &  B.  501, 
72  E.  C.  L. ;  R.  v.  Maybury,  1  F,  &  F.  90 ;  R.  v.  Nether  Hallam, 
6  Cox,  C.  C.  435.  As  to  previous  conviction  upon  an  indictment 
being  conclusive  evidence  of  liability,  and  in  the  case  of  an  adjoining 
township,  see  R.  v.  Brightside  Bierlow,  13  Q.  B.  933,  66  E.  C.  L. 

A  record  of  an  acquittal,  ho^vever,  is  not  evidence  to  show  that  the 
parish  is  not  liable.  R.  v.  St.  Pancras,  Peake  Rep.  219  ;  R.  v.  Cotton, 
3  Camp.  444. 


796  HIGHWAYS — NUISANCE. 

By  the  5  &  6  AYill.  4,  c.  50,  s.  62,  liighways  repaired  by  parties 
ratione  tenune,  may  be  made  parish  liighways  ou  payment  of  an 
annual  sum,  to  be  fixed  by  the  justices.  And  see  now.  also  25  &  26 
Vict.  c.  61,  ss.  34,  35,  as  to  highway  districts. 

Proof  for  the  defence — parish.  Upon  an  indictment  against  a 
parish  for  not  repairing  the  defendants  may  show  under  the  plea  of 
not  guilty,  either  that  the  way  in  question  is  not  a  higliway,  or  that  it 
does  not  lie  within  the  parish,  or  that  it  is  not  out  of  repair;  for  all 
these  are  facts  which  the  prosecutor  must  allege  in  the  indictment,  and 
prove  under  the  plea  of  not  guilty.  2  Saund.  158,  w  (3);  1  lluss. 
Cri.  497,  5th  ed.  But  where  a  parish  seeks  to  discharge  itself  from 
its  liability,  by  imposing  the  burthen  of  repair  upon  others,  this  de- 
fence must  be  specially  pleaded,  and  cannot  be  given  in  evidence 
under  the  general  issue.  In  such  special  plea,  the  parish  must  show 
with  certainty  who  is  liable  to  the  repairs.  R.  v.  St.  Andrews,  1 
Mod.  112;  3  Salk.  183;  1  Vent.  256;  R.  v.  Hornsey,  Carth.  212; 
Fort.  254  ;  Hawk.  P.  C.  b.  1,  c.  76,  s.  9.  See  also  R.  v.  Eastington,  5 
A.  &  E.  765,  31  E.  C.  L.,  where  a  plea  alleging  that  a  particular 
township  had  been  accustomed  to  repair  all  roads  within  it,  "  which 
*fi"^n  **jt]ierwise  would  be  repairable  by  the  parish  at  large,"  was  held 
-^  bad,  in  arrest  of  judgment,  because  it  did  not  aver  that  the 
highway  was  one  which  but  for  custom  would  be  repairable  by  the 
parish  at  large,  and  did  not  show  what  party  other  than  the  de- 
fendants was  liable  to  repair.  But  where  the  burthen  of  repairs 
was  transferred  from  the  parish  by  Act  of  parliament.  Lord  Ellen- 
borough  held  that  this  might  be  shown  under  a  plea  of  not  guilty. 
R.  V.  St.  George's,  Hanover  Square,  3  Campb.  222.  Where  the  parish 
pleads  specially  that  others  are  bound  to  repair,  the  plea  admits  the  way 
to  be  a  highway,  and  the  defendants  cannot  under  such  plea  give  evi- 
dence that  it  is  not  a  highway.  R.  v.  Brown,  11  Mod.  273.  In 
order  to  prove  the  liability  of  a  parish  to  repair,  when  denied  un- 
der a  special  plea,  the  prosecutor  may  give  in  evidence  a  conviction 
obtained  against  tiie  same  parish  upon  another  indictment  for  not 
repairing,  and  whether  such  judgment  was  after  verdict  or  by  de- 
fault, it  will  be  conclusive  evidence  of  the  liability  of  the  whole 
parish  to  repair.  R.  v.  St.  Paneras,  Peake,  219  ;  R.  v.  Whitney, 
7  C.  &  P.  208,  32  E.  C.  L.  But  fraud  will  be  an  answer  to  such 
evidence.  Peake,  219.  A  record  of  acquittal  is  not  admissible  as 
evidence  of  the  non-liability  of  the  parish  acquitted,  for  it  might 
have  proceeded  upon  other  grounds  than  the  non-liability  of  the 
parish  to  repair.  Id.  But  where  an  indictment  has  been  preferred 
against  a  parish  consisting  of  several  t(»wnships,  and  a  conviction 
has  been  obtained,  but  it  appears  that  the  defence  was  made  and 
conducted  entirely  by  the  district  in  which  the  way  lay,  without  the 
privity  or  consent  of  the  otlier  districts,  the  indictment  will  be  con- 
sidered as  in  substance  an  indictment  against  that  district  only,  and 
the  others  will  be  pcn'mitted  to  jilead  the  prescription  to  a  subse- 
quent indictment  for  not  repairing  the  highways  in  that  parish.     2 


HIGHWAYS — NUISANCE.  797 

Saiind.  158  c.  {n);  R.  v.  Townsend,  Doug.  421.  On  an  indictment 
for  not  repairing,  against  the  parish  of  Eardisland,  consisting  of  three 
townships,  Eardisland,  Burton,  and  Hardwicke,  where  there  was  a 
plea  on  the  part  of  the  township  of  Burton,  that  each  of  the  three 
townships  had  immemorially  repaired  its  own  highways  separately,  it 
was  held  that  the  records  of  indictments  against  the  parish  generally, 
for  not  repairing  highways  situate  in  the  township  of  Eardisland,  and 
the  township  of  Hardwicke,  with  the  general  pleas  of  not  guilty, 
and  convictions  thereupon  were  primd  facie  evidence  to  disprove 
the  custom  for  eacli  township  to  repair  separately,  but  that  evidence 
was  admissible  to  show  that  these  pleas  of  not  guilty  were  pleaded 
only  by  the  inhabitants  of  the  townships  of  Eardisland  and  Hard- 
wicke, without  the  privity  of  Burton.    R.  v.  Eardisland,  2  Campb.  494. 

Proof  for  the  defence — district  or  private  individual.  Where  a 
particular  district,  not  being  a  parish,  or  where  a  private  individual 
by  reason  of  tenure,  is  indicted  for  not  repairing  a  highway,  as  the 
prosecutor  is  bound  to  prove  the  special  ground  of  their  liability,  viz., 
custom  or  tenure,  under  the  plea  of  not  guilty,  so  the  defendants  are 
at  liberty  under  that  plea  to  show  that  no  special  grounds  exist.  In 
such  case,  it  is  not  necessary  for  the  defendants  after  disproving  their 
own  liability  to  go  further,  and  prove  the  liability  of  others.  But 
if,  as  in  the  case  of  a  parish,  they  choose,  though  unnecessarily,  to 
plead  the  special  matter,  it  has  been  held  that  it  is  not  sufficient  to 
traverse  their  own  liability,  but  that  they  must  show  in  particular  who 
*is  bound  to  repair.  R.  v.  Yarnton,  1  Sid.  140;  R.  v.  Hornsev,  rtnoo 
Carth.  212  ;  2  Saund.  159  a,  n.  (1.);  1  Russ.  Cri.  498,  5th  ed.  L  '^'^^ 
As  to  the  evidence  of  custom  to  exempt  a  district  from  liability,  see 
n.v.  Rollett,  L.  R.,  10  Q.  B.  469;  44  L.J.,M.  C.  190.  Where 
charged  ratione  tenurce,  the  defendant  may  show  that  the  tenure  origi- 
nated within  the  time  of  memory.  R.  v.  Hay  man,  M.  &  M.  401.  It 
has  been  held  by  Maule,  J.,  that  evidence  of  reputation  is  not  admis- 
sible to  show  a  liability  in  the  occupiers  of  land  to  repair  a  road  ratione 
tenurce.  R.  v.  Wavertree,  2  Moo.  &  R.  353.  But  this  case  must  be 
considered  as  overruled  by  R.  ??.  Bedford,  24  L.  J.,  Q.  B.  81  ;  supra, 
p.  355.  Where  the  land  over  which  the  road  passed  Avas  washed  a^vay 
by  the  sea,  the  liability  of  the  defendant,  charged  ratione  tenurce,  was 
held  to  have  ceased.  R.  v.  Bamber,  5  Q.  B.  279,  48  E.  C.  L.;  but  the 
road  must  be  substantially  destroyed.  R.  v.  Greenhow,  1  Q.  B.  D. 
703;  45L.  J.,  M.  C.  141. 

Particulars  of  the  highways  obstructed,  etc.  On  an  indictment 
for  obstructing  divers  horse  and  carriage  ways,  and  footpaths,  I'arke, 
B.,  upon  the  production  of  an  affidavit  from  the  attorney  for  tlie  de- 
fendant, that  he  was  unable  to  understand  all  the  precise  tracks  indicted, 
made  an  order  for  the  delivery  of  particulars  of  the  ways  in  question, 
which  were  nine  in  number,  seven  described,  generally,  as  highways, 
and  two  described  as  footwavs.  R.  v.  Marquis  of  Downshire,  4  A.  & 
E.  698,  at  p.  699,  31  E.  C.  L.     See  supra,  p.  195. 


798  HIGHWAYS — NUISANCE. 

Costs,  etc.  By  5  &  6  Will.  4,  c.  50,  s.  95,  the  costs  of  the  prose- 
cution upon  an  indictment  for  non-repair  of  highways  shall  be  directed 
to  be  paid  out  of  the  rates  by  the  judge  of  assize  (see  R.  v.  Ipstones, 
L.  R.,  3  Q.  B.  216 ;  37  L.  J.,  M.  C.  37)  before  whom  the  said  indict- 
ment is  tried,  and  it  was  long  thought  that  a  judge  could  not  give  costs 
when  the  defendants  pleaded  guilty,  but  that  opinion  is  now  overruled. 
See  II.  V.  Inhab.  of  Haslemere,  32  L.  J.,  M.  C.  30.  But  this  power  is 
confined  to  the  judge  of  assize,  that  is  the  judge  sitting  under  tiie  com- 
mission of  oyer  and  terminer,  and  where  the  indictment  is  removed  by 
the  defendants  into  the  Court  of  Queen's  Bench  by  certiorari,  and  a 
verdict  is  found  for  the  defendants,  the  court  has  no  power  under  this 
section  to  award  costs  to  the  prosecutor.  E,.  v.  Inhab.  of  Ipstones,  L. 
R.  3  Q.  B.  216. 

By  the  5  &  6  Will.  4,  c.  50,  s.  98,  the  court  before  whom  any  in- 
dictment for  not  repairing  highways  is  preferred  may  award  costs  to 
the  prosecutor,  to  be  paid  by  the  person  so  indicted,  if  it  shall  appear 
to  the  said  court  that  the  defence  made  to  such  indictment  was  frivolous 
and  vexatious.  Bat  under  this  section  there  is  no  power  for  the  court 
before  whom  the  indictment  is  preferred  to  award  costs  where  the  de- 
fendants plead  guilty.  R.  v.  Inhab.  of  Denton,  34  L.  J.,  M.  C.  13, 
distinguishing  R.  v.  Inhab.  of  Haslemere,  supra.  By  sect.  99,  pre- 
sentments on  account  of  highwa  ys  or  turnpike  roads  being  out  of  re- 
pair, are  abolished.  See,  as  to  costs,  R.  v.  Inhab.  of  Hickling,  7  Q. 
B.  890,  53  E.  C.  L.;  15  L.  J.,  M.  C.  23  ;  R.  v.  Down  Holland,  15  L. 
J.,  M.  C.  25 ;  R.  V.  Clarke,  5  Q.  B.  887,  48  E.  C.  L.  See  R.  v.  In- 
hab. of  Yorkhill,  9  C.  &  P.  218,  38  E.  C.  L. ;  R.  v.  Inhab.  of 
Chedworth,  9  C.  &  P.  285,  38  E.  C.  L.,  and  1  Russ.  Cri.  507 
(/)  5th  ed.;  R.  f.  Inhab.  of  Preston,  1  C.  &  K.  137,  47  E.  C.  L.; 
R.  V.  Merionethshire,  6  Q.  B.  343,  51  E.  C.  L.;  R.  v.  Inhab.  of 
Heanor,  6  Q.  B.  745,  51  E.  C.  L.;  R.  v.  Inhab.  of  Pembridge,  3 
Q.  B.  901,  43  E.  C.  L. ;  3  G.  &  D.  5  ;  R.  v.  Inhab.  of  Paul,  1 
Moo.  (fe  R.  307,  and  R.  y,  Inhab.  of  Chillicombe,  therein  cited,  p.  311 ; 
R.  V.  Inhab,  of  Great  Broughton,  2  Moo.  &  R,  444.  See  also  R.  v. 
*A':j'?-l  *Buckland,  12  L.  T.,  N.  S.  380;  R.  v.  Heath,  12  L.  T.  492; 
^'"^^-1  R.  V.  Lee,  1  Q.  B.  D.  198 ;  45  L.  J.,  M.  C.  54,  as  to  costs 
under  the  25  &  26  Vict.  c.  61.      See  further,  title  "Bridges,"  ante. 

The  amount  of  costs  must  be  ascertained  and  ordered  by  the  same 
sessions  ;  the  sessions  cannot  refer  the  costs  to  be  taxed  by  their  officer 
after  the  sessions.     R.  v.  Lambeth,  3  C.  L.  R.  35. 

New  trial.  It  is  now  conclusively  settled  on  an  indictment  for 
nuisance  to  a  highway,  that,  inasmuch  as  if  there  had  been  a  verdict  of 
guilty,  the  defendant  would  have  been  liable  to  fine  and  imprisonment, 
and  the  right  is  not  bound,  the  court  will  not  grant  a  new  trial.  R.  i\ 
Russell,  3  El.  &  Bl.  943,  77  E.  C.  L. ;  23  L.  J.,  M.  C.  173 ;  R.  v. 
Johnson,  29  L.  J.,  M.  C.  133  ;  R.  v.  Duncan,  7  Q.  B.  D.  198;  50  L. 
J.  M.  C.  95. 

It  has,  however,  long  been  the  practice  on  an  indictment  against 
parishes  for  the  non-repair  of  highways,  in  which  the  consequences 


HIGHWAYS — NUISANCE.  799 

are  not  penal  in  the  sense  that  proceedings  against  an  individual  are 
penal,  to  suspend  the  judgment,  upon  an  application  on  the  part  of 
the  prosecution,  R.  v.  Sutton,  5  Barn.  &  Ad.  52,  27  E.  C.  L.,  if  it  is 
considered  necessary  that  a  new  indictment  should  be  preferred.  And 
the  present  practice  is,  instead  of  resorting  to  this  indirect  method,  to 
grant  a  new  trial  in  similar  cases.  See  R.  v.  Russell,  supra.  In  one 
case,  R.  v.  Chorley,  12  Q.  B,  515,  64  E.  C.  L.,  a  new  trial  was  granted 
after  an  acquittal  of  an  indictment  for  a  nuisance,  but  that  decision  is 
explained  in  R.  v.  Russell,  as  resting  on  the  consideration,  that  there 
the  matter  had  resolved  into  a  pure  question  of  civil  right.  Perhaps 
it  can  scarcely  now  be  considered  as  an  authority.  Vide  supra,  p. 
235. 

Indictment  by  justices.  Where  under  sect.  19  of  25  &  26  Vict.  c. 
61,  the  justices  direct  an  indictment,  their  jurisdiction  is  limited  to  ad- 
mitted highways ;  but  if  the  fact  of  the  road  being  a  highway  is  denied, 
and  the  liability  to  repair  is  admitted,  the  justices  have  no  jurisdiction, 
R.  V,  Farrer,  L.  R.  1  Q.  B.  558 ;  35  L.  J.,  M.  C.  210. 


800  HOMICIDE. 


*g34-J  *HOMICIDE. 

Those  homicides  which  are  felonies,  viz.,  murder  and  manslaughter, 
will,  for  the  convenience  of  reference,  be  treated  of  under  separate 
heads.  It  will  be  useful  in  this  place  to  distinguish  the  nature  of  the 
different  kinds  of  homicide  not  amounting  to  felony. 

Homicides  not  felonious  may  be  divided  into  three  classes,  justifiable 
homicide,  excusable  homicide,  and  homicide  by  misadventure. 

Justifiable  homicide  is  where  the  killing  is  in  consequence  of  an  im- 
perious duty  prescribed  by  law,  or  is  owing  to  some  unavoidable  ne- 
cessity induced  by  the  act  of  the  party  killed,  without  any  manner  of 
fault 'in  the  party  killing,  1  East,  P.  C.  219  ;  Hawk.  P.  C.  b.  1,  c. 
28,  ss,  1,  22. 

Excusable  homicide  is  where  the  party  killing  is  not  altogether  free 
from  blame,  but  the  necessity  ^vhich  renders  it  excusable  may  be 
said  to  be  partly  induced  by  his  own  act.  Formerly  in  this  case  it 
was  the  practice  for  the  jury  to  find  the  fact  specially,  and  upon  cer- 
tifying the  record  into  chancery,  a  pardon  issued,  of  course,  under  the 
statute  of  Gloucester,  c.  9,  and  the  forfeiture  was  thereby  saved. 
But  latterly  it  was  usual  for  the  jury  to  find  the  prisoner  not  guilty. 
1  East,  P.  C.  220.  And  now  by  the  24  &  25  Vict.  c.  100,  s.  7,  "  no 
punishment  or  forfeiture  shall  be  incurred  by  any  person  who  shall 
kill  another  by  misfortune  or  in  his  own  defence,  or  in  any  other 
manner  without  felony," 

Homicide  by  misadventure  is  where  a  man  doing  a  lawful  act,  Mnth- 
out  any  intention  of  bodily  harm,  and  after  using  proper  precautions 
to  prevent  danger,  unfortunately  kills  another  person.  The  act  upon 
which  the  death  ensues  must  be  lawful  in  itself,  for  if  it  be  malum 
in  se,  the  case  will  amount  to  felony,  either  murder  or  manslaughter, 
according  to  the  circumstances.  If  it  be  merely  malum  prohibitum,  as 
(formerly)  the  shooting  at  game  by  an  unqualified  person,  that 
will  not  vary  the  degree  of  the  offence.  The  usual  examples  under 
this  head,  are — 1,  where  death  ensues  from  innocent  recreations ; 
2,  from  moderate  and  lawful  correction  in  foro  domestico ;  and  3, 
from  acts  lawful  or  indifferent  in  themselves,  done  with  proper  and 
ordinary  caution.  Homicide  by  chance-medley  is  strictly  where  death 
ensues  from  a  combat  Ijetween  the  j^arties  upon  a  sudden  quarrel  ;  but 
it  is  frequently  confounded  with  misadventure  or  accident.  1  East, 
P.  C.  221. 


HOUSEBREAKING.    See  Dwelling-House. 


ILL-TEEATING   APPRENTICES,   SERVANTS,   ETC.  801 


«ILL-TREATING  APPRENTICES,  SERVANTS,  LUNATICS,  AND    r*635 
HELPLESS  PERSONS. 


PAGE 

In  cases  of  apprentices  or  servants,  24  &  25  Vict.  c.  100    .        .       .        636 
Lunatics,  etc 636 

In  cases  of  apprentices  or  servants.  The  24  &  25  Vict.  c.  100,  s. 
26,  replacing  the  14  &  15  Vict.  c.  11,  s.  1,  enacts  that,  "whosoever, 
being  legally  liable  either  as  a  master  or  a  mistress  to  provide  for 
any  apprentice  or  servant,  necessary  food,  clothing,  or  lodging,  shall 
wilfully  and  without  lawful  excuse  refuse  or  neglect  to  provide  the 
same,  or  shall  unlawfully  or  maliciously  do  or  cause  to  be  done  any 
bodily  harm  to  any  such  apprentice  or  servant,  so  that  the  life  of  such 
apprentice  or  servant  shall  be  endangered,  or  the  health  of  such  ap- 
prentice or  servant  shall  have  been  or  shall  be  likely  to  be  perma- 
nently injured,  shall  be  guilty  of  a  misdemeanor,  and  being  convicted 
thereof  shall  be  liable,  at  the  discretion  of  the  court,  to  be  kept  in 
penal  servitude  for  the  term  of  three  [now  five]  years,  or  to  be  im- 
prisoned for  any  term  not  exceeding  two  years,  with  or  without  hard 
labor." 

Under  sect.  6  of  the  Conspiracy  Act,  1875,  38  &  39  Vict.  c.  86, 
where  a  master  being  legally  liable  to  provide  for  his  servant  or  ap- 
prentice necessary  food,  clothing,  medical  aid  or  lodging,  wilfully  and 
without  lawful  excuse  refuses  or  neglects  to  provide  the  same,  whereby 
the  health  of  the  servant  or  apprentice  is,  or  is  likely  to  be,  seriously 
or  permanently  injured,  he  shall,  on  summary  conviction,  be  liable 
either  to  pay  a  penalty  not  exceeding  20/.,  or  to  be  imprisoned  for  a 
term  not  exceeding  six  months  with  or  without  hard  labor,  or  by 
sect.  9,  the  oifence  may  be  prosecuted  on  an  indictment  at  the  request 
of  the  party  accused. 

See  as  to  costs,  24  &  25  Vict.  c.  100,  ss.  74,  75,  and  77,  supra,  p. 
243. 

By  sect.  73  of  the  24  &  25  Vict.  c.  100,  "where  any  complaint  shall 
be  made  of  an  offence  against  s.  26  of  this  act,  or  of  any  bodily  injury 
inflicted  upon  any  person  under  the  age  of  sixteen  years,  for  which 
the  party  committing  it  is  liable  to  be  indicted,  and  the  circumstances 
of  which  offence  amount  in  point  of  law  to  a  felony,  or  an  attempt  to 
commit  a  felony,  or  an  assault  with  intent  to  commit  a  felony,  and  two 
justices  of  the  peace,  before  whom  such  complaint  is  heard,  shall  cer- 
tify under  their  hands,  that  it  is  necessary  for  the  purposes  of  public 
justice,  that  the  prosecution  should  be  conducted  by  the  guardians  of 
the  union  or  place,  or,  where  there  are  no  guardians,  by  the  overseers 
of  the  poor  of  the  place  in  which  the  offence  shall  be  charged  to  have 
51 


802  ILL-TREATING   APPRENTICES,    SERVANTS,    ETC. 

been  committed,  such  guardians  or  overseers,  as  the  case  may  be,  upon 
personal  service  of  such  certificate,  or  a  duplicate  thereof  upon  the 
clerk  of  such  guardians,  or  upon  any  one  of  such  overseers,  shall 
*fi'^Pl  *conduct  the  prosecution,  and  shall  pay  the  costs,  reasonably  and 
J  properly  incurred  by  them  therein,  so  far  as  the  same  shall  not 
be  allowed  to  them  under  any  order  of  any  court,  out  of  the  common 
fund  of  the  union,  or  out  of  the  funds  in  the  hands  of  the  guardians 
or  overseers,  as  the  case  may  be ;  and  when  there  is  a  board  of  guar- 
dians, the  clerk  or  some  other  officer  of  the  union  or  place,  and  where 
there  is  no  board  of  guardians,  one  of  the  overseers  of  the  poor,  may, 
if  such  justices  think  it  necessary  for  the  purposes  of  public  justice, 
be  bound  over  to  prosecute." 

It  has  been  held,  that  a  master  is  not  bound  by  law  to  furnish  med- 
ical advice  for  his  servant ;  but  that  it  is  otherwise  in  the  case  of  an 
apprentice,  and  that  a  master  is  bound,  during  the  illness  of  his  ap- 
prentice, to  furnish  him  with  proper  medicines.  See  R.  v.  Smith,  8 
C.  &  P.  135.     And  see  now  the  new  statute,  supra. 

Lunatics,  etc.  The  8  &  9  Vict.  c.  100,  contains  several  provisions 
for  regulating  the  care  and  supervision  of  lunatics,  and  in  many  in- 
stances rendering  the  breach  of  those  regulations  a  misdemeanor.  By 
sect.  44  it  is  a  misdemeanor  to  receive  two  or  more  lunatics  into  a 
house  which  is  not  duly  licensed  under  the  Act.  Under  this  section  it 
has  been  held  that  if  the  persons  so  received  are  found  by  the  jury  to 
be  lunatic  the  offence  is  made  out,  notwithstanding  that  the  defendant 
honestly  and  on  reasonable  grounds  believed  that  they  were  not  lunatic. 
R  V.  Bishop,  5  Q.  B.  D.  259  ;  49  L.  J.,  M.  C.  45.  The  16  &  17 
Vict.  c.  96,  s.  9,  enacts,  that  "  if  any  superintendent,  officer,  nurse, 
attendant,  servant,  or  other  person  employed  in  any  registered  hospital, 
or  licensed  house,  or  any  person  having  the  care  or  charge  of  any  sin- 
gle patient,  in  any  way  abuse,  or  ill-treat,  or  wilfully  neglect,  any 
patient  in  such  hospital,  or  house,  or  such  single  patient ;  or  if  any 
person  detaining,  or  taking,  or  having  the  care  or  charge,  or  concerned 
in  taking  part  in  the  custody,  care,  or  treatment,  of  any  lunatic  or 
person  alleged  to  be  a  lunatic,  in  any  way  abuse,  ill-treat,  or  wilfully 
neglect  such  lunatic,  or  alleged  lunatic,  he  shall  be  guilty  of  a  misde- 
meanor, and  shall  be  subject  to  indictment  for  every  such  offence,  or 
to  forfeit  for  every  such  offence,  on  a  summary  conviction  thereof,  be- 
fore two  justices,  any  sum  not  exceeding  20/." 

A  husband  having  been  tried  and  convicted  under  this  statute,  for 
that  he,  having  the  care  and  charge  of  his  wife,  a  lunatic,  did  abuse 
and  ill-treat  her ;  upon  a  case  reserved,  the  court  held  that  he  was 
not  a  person  having  the  care  and  charge  of  a  lunatic  within  the  mean- 
ing of  the  statute,  which  was  not  intended  to  apply  to  persons  whose 
care  or  charge  arose  from  natural  duty.  R.  v.  Rundle,  1  Dears.  C  C. 
R.  432  ;  24  L.  J.,  M.  C.  129. 

But  where  a  man  voluntarily  took  upon  himself  the  care  and  charge 
of  a  lunatic  brother  in  his  own  private  house,  he  was  held  to  be  liable 
to  be  indicted  for  ill-treatinff  him  under  the  above  statute.    R.  v.  For- 


ILL-TREATING   APPRENTICES,   SERVANTS,    ETC.  803 

ter,  L.  &  a  394  ;  33  L.  J.,  M.  C.  126.  K.  v.  Smith,  14  Cox,  C.  C. 
R.  398. 

A  mistress  was  indicted  for  manslaughter  by  neglecting  to  sui)ply 
her  servant  who,  it  was  contonde<l  by  the  prosecution,  was  of  weak 
mind,  with  proper  food  and  lodging.  It  was  held  that  the  question 
for  the  jury  was,  whether  there  was  evidence  that  the  deceased  was 
reduced  to  such  a  state  of  body  and  mind  as  to  be  helpless  and  unable 
to  take  care  of  herself,  and  that  she  was  so  under  the  dominion  and 
restraint  of  her  mistress  as  to  be  unable  to  withdraw  herself  from 
*her  control.  R.  v.  Smith,  L.  &  C.  607  ;  34  L.  J.,  M.  C.  153.  r^^^y 
See  now  tlie  new  statute,  supra.  L 

By  16  &  17  Vict.  c.  97,  s.  123.  If  any  superintendent,  officer, 
nurse,  attendant,  servant,  or  other  person  employed  in  any  asylum, 
shall  strike,  wound,  ill-treat,  or  wilfully  neglect  any  lunatic  confined 
therein,  he  shall  be  guilty  of  a  misdemeanor. 

By  23  &  24  Vict.  c.  75.  Any  superintendent,  officer,  nurse,  at- 
tendant, servant,  or  other  person  employed  in  any  asylum  for  criminal 
lunatics,  who  strikes,  wounds,  ill-treats,  or  wilfully  neglects  any  person 
confined  therein,  shall  be  guilty  of  a  misdemeanor,  and  shall  be  sub- 
ject to  indictment  for  every  such  offence,  and  on  conviction  under 
the  indictment,  to  fine  or  imprisonment  with  or  without  hard  labor, 
or  to  both  fine  or  imprisonment  at  the  discretion  of  the  court,  or  to 
forfeit  for  every  such  offence,  on  a  summary  conviction  thereof  before 
two  justices,  any  sum  not  exceeding  twenty  pounds,  nor  less  than  two 
pounds. 

For  ill-treating  children,  see  "  Children — offences  relating  to,"  ante, 
p.  398. 

"  By  the  Children's  Dangerous  Performances  Act,  1879  ;  42  &  43 
Vict.  c.  34,  an  employer  of  a  child  under  the  age  of  14  years  may  be 
indicted  for  an  assault  where  any  accident  causing  any  actual  bodily 
harm  occurs  to  any  such  child  in  the  course  of  a  public  exhibition 
which  in  its  nature  is  dangerous  to  life  or  limb." 


804  INCITING  TO  MUTINY. 


'638] 


♦INCITING  TO  MUTINY. 


By  37  Geo.  3,  c.  70,  s.  1  (E.)  after  reciting  that  divers  wicked  and 
evil-disposed  persons,  by  the  publication  of  written  or  printed  papers, 
and  by  malicious  and  advised  speaking,  had  of  late  industriously  en- 
deavored to  seduce  persons  serving  in  his  Majesty's  forces  by  sea  and 
land,  from  their  duty  and  allegiance  to  his  Majesty,  and  to  incite  them 
to  mutiny  and  disobedience ;  it  is  enacted,  "that  any  jjcrson  \vho  shall 
maliciously  and  advisedly  endeavor  to  seduce  any  person  or  persons 
serving  in  his  Majesty's  forces,  by  sea  or  land,  from  his  or  their  duty 
and  allegiance  to  his  Majesty,  or  to  incite  or  stir  up  any  such  person 
or  persons,  to  commit  any  act  of  mutiny,  or  to  make,  or  endeavor  to 
make,  any  mutinous  assembly,  or  to  commit  any  traitorous  or  muti- 
nous practice  whatsoever,  shall,  on  being  legally  convicted  of  such 
offence,  be  adjudged  guilty  of  felony  [and  shall  suffer  death,  as  in 
cases  of  felony,  without  benefit  of  clergy]." 

S.  2  provides  and  enacts,  "  that  any  offence  committed  against  this 
act,  whether  committed  on  the  high  seas  or  within  that  part  of  Great 
Britain  called  England,  shall  and  may  be  prosecuted  and  tried  before 
any  court  of  oyer  and  terminer,  or  gaol  delivery  for  any  county  of 
that  part  of  Great  Britian  called  England,  in  such  manner  and  form 
as  if  the  said  offence  had  been  therein  committed." 

By  the  7  Will.  4  &  1  Vict.  c.  91  (U.  K.),  s.  1,  after  reciting  {inter 
alia)  the  above  statutes,  it  is  enacted,  "  that  if  any  person  shall,  after 
the  commencement  of  this  act,  be  convicted  of  any  of  the  offences 
hereinbefore  mentioned,  such  persons  shall  not  suffer  death,  or  have 
sentence  of  death  awarded  against  him  or  her  for  the  same,  but  shall 
be  liable,  at  the  discretion  of  the  court,  to  be  transported  beyond  the 
seas  for  the  term  of  the  natural  life  of  such  persons,  or  for  any  term 
not  less  than  fifteen  years,  or  to  be  imprisoned  for  any  term  not  ex- 
ceeding three  years." 

By  s.  2,  hard  labor  and  solitary  confinement  may  be  awarded  in 
cases  of  imprisonment. 

By  the  Naval  Discipline  Act,  1866,  29  &  30  Vict.  c.  109,  s.  10,  mu- 
tiny with  violence  is  punishable  Avith  death,  and  penalties  are  awarded 
for  acting  traitorously,  with  cowardice  and  with  negligence  respect- 
ively during  such  mutiny.  By  section  11,  where  the  mutiny  is  not 
accompanied  with  violence  the  ringleaders  are  punishable  with  death, 
and  those  who  join  in  or  do  not  endeavor  to  suppress  such  mutiny 
are  punishable  with  imprisonment.  By  ss.  12, 13,  persons  inciting  to 
mutiny  or   uttering   or  concealing  mutinous  words  are  subjected  to 


INCITING   TO   MUTINY.  805 

punishment.     Provisiotis  arc  also  made  for  the  punishment  of  offences 
in  striking  superior  officers  and  for  insuboj'dination  and  desertion. 

The  annual  mutiny  acts  (see  the  44  iSi  45  Vict.  cc.  57,  58,  continued 
by  4G  Vict.  c.  6),  make  it  a  misdemeanor  for  every  person  who  shall, 
in  any  part  of  her  iNIajesty's  dominions,  directly  or  indirectly,  persuade 
any  soldier  to  desert. 


806  LARCENY. 


* 


639]  *LAKCENY. 


PAGE 

Interpretation  of  terms 640 

Distinction  between  grand  and  petit  larceny  abolished  .        .        .  641 

Bailees  fraudulently  converting  property 641 

Punishment  for  simple  larceny 641 

Three  larcenies  witnin  six  months  may  be  charged  in  one  indict- 
ment    641 

Election 641 

Larceny  after  a  previons  conviction  for  felony 642 

a  previous  conviction  for  misdemeanor    .        .        ,  642 

two  summary  convictions 642 

by  servant 642 

by  persons  in  the  Queen's  service,  or  in  the  police       .        .  643 
Conviction  for  larceny  on  indictment  for  embezzlement,  and  vice 

versa 643 

Venue .,.,...  643 

Larceny  of  property  of  partners,  etc.      ......  644 

counties,  etc. 645 

goods  for  the  use  of  the  poor        ,        .         .        .        .  645 

property  of  trustees  of  turnpikes 646 

of  commissioners  of  sewers,  etc.  646 

of  friendly  societies,  etc.     .         .  646 

of  loan  societies        .                ,        ,  646 

of  building  societies    ,        .        .  646 

of  industrial  societies      .         .        ,  646 

of  trades  unions  ....  646 

of  savings  banks     ....  647 

of  her  Majesty's  customs    •        .  647 

Summary  jurisdiction 647 

Definition  of  larceny 647 

Proof  of  the  taking 649 

What  manual  taking  is  required     ....  649 

Possession  obtained  by  mistake 651 

Possession  obtained    by  fraud   at  time  of  taking — 

property  not  parted  witli 653 

Property  as  well  as  possession  parted  with         .  655 
Possession  obtained  from  servant   by   fraud — prop- 
erty parted  with  by  servant          ....  662 

Possession  obtained  by  threat 664 

Possession  obtained  by  false  process  of  law   .        .  664 

Possession  obtained  by  bailees 665 

Possession  obtained  by  servants 666 

Proof  of  the  intent  to  deprive  the  owner  of  his  property          .         .  672 

Goods  taken  under  a  fair  claim  of  right         .        .  674 

Larceny  of  goods  found       , 675 

by  the  owner 678 

by  part  owners 679 

by  wife 681 

by  husband 684 

*640]    "^Distinction  between  larceny,  embezzlement,  and  obtaining  by  false 

pretences 684 

Proof  of  value 684 

Proof  of  ownership 685 

Where  unnecessary 685 

Intermediate  tortious  taking 685 

Goods  in  custodia  legis ,        .  685 

Goods  of  an  adjudged  felon 686 

Goods  in  possession  of  children 686 

in  possession  of  bailees 686 

in  possession  of  carriers 687 

of  deceased  jjersons 688 


LARCENY.  807 

FAGS 

Proof  of  goods  of  lodgers ,  689 

of  married  women 689 

of  persons  unknown 689 

in  the  possession  of  servants 690 

of  corporations 690 

in  a  churcli         ........  692 

Venue                        692 

Interpretation  of  terms.  By  the  24  &  25  Vict.  c.  96,  s.  1,  "  in 
tlie  interpretation  of  this  Act  the  term  '  document  of  title  to  goods  ' 
shall  include  any  bill  of  lading,  India  warrant,  dock  warrant,  ware- 
house-keeper's certificate,  warrant  or  order  for  the  delivery  or  transfer 
of  any  goods  or  valuable  thing,  bought  and  sold  note,  or  any  other 
documents  used  in  the  ordinary  course  of  business  as  proof  of  the 
possession  or  control  of  goods,  or  authorizing  or  purporting  to  autho- 
rize, either  by  indorsement  or  by  delivery,  the  possessor  of  such  docu- 
ments to  transfer  or  receive  any  goods  thereby  represented  or  therein 
mentioned  or  referred  to. 

"  The  term  '  document  of  title  to  lands '  shall  include  any  deed, 
map,  paper,  or  parchment,  written  or  printed,  or  partly  written  and 
partly  printed,  being  or  containing  evidence  of  the  title  or  any  part 
of  the  title,  to  any  real  estate,  or  to  any  interest  in  or  out  of  any  real 
estate. 

"  The  term  '  valuable  security '  shall  include  any  order,  exchequer 
acquittance,  or  other  security  whatsoever  entitling  or  evidencing  the 
title  of  any  person  or  body  corporate  to  any  share  or  interest  in  any 
public  stock  or  fund,  whether  of  the  United  Kingdom,  or  of  Great 
Britain,  or  of  Ireland,  or  of  any  foreign  state,  or  in  any  fund  of  any 
body  corporate,  company,  or  society,  whether  within  the  United  King- 
dom or  in  any  foreign  state  or  country,  or  to  any  deposit  in  any  bank, 
and  shall  also  include  any  debenture,  deed,  bond,  bill,  note,  warrant, 
order,  or  other  security  whatsoever  for  money  or  for  payment  of  money, 
whether  of  the  United  Kingdom,  or  of  Great  Britain,  or  of  Ireland, 
or  of  any  foreign  state,  and  any  document  of  title  to  lands  or  goods 
as  hereinbefore  defined. 

"  The  term  '  property '  shall  include  every  description  of  real  and 
personal  property,  money,  debts,  and  legacies,  and  all  deeds  and  in- 
struments relating  to  or  evidencing  the  title  or  right  to  any  property, 
or  giving  a  right  to  recover  or  receive  any  money  or  goods,  and  shall 
also  include  not  only  such  property  as  shall  have  been  originally  in 
the  possession  or  under  the  control  of  any  party,  but  also  any  property 
*into  or  for  which  the  same  may  have  been  converted  or  ex-  r^nA-, 
changed,  and  anything  acquired  by  such  conversion  or  exchange,  L 
whether  immediately  or  otherwise. 

"  For  the  purpose  of  this  Act  the  night  shall  be  deemed  to  com- 
mence at  nine  of  the  clock  in  the  evening  of  each  day,  and  to  con- 
clude at  six  of  the  clock  in  the  morning  of  the  next  succeeding  day." 

Distinction  between  grand  and  petit  larceny  abolished.  By  s.  2, 
*'  every  larceny,  whatever  be  the  value  of  the  property  stolen,  shall  be 


808  LARCENY. 

deemed  to  be  of  the  same  nature,  and  shall  be  subject  to  the  same 
incidents  in  all  respects  as  grand  larceny  was  before  the  twenty -first 
day  of  June,  one  thousand  eight  hundred  and  twenty- seven ;  and 
every  court  whose  power  as  to  the  trial  of  larceny  was  before  that 
time  limited  to  petit  larceny  shall  have  power  to  try  every  case  of  lar- 
ceny, the  punishment  of  which  cannot  exceed  the  punishment  here- 
inafter mentioned  for  simple  larceny,  and  also  to  try  all  accessories  to 
such  larceny." 

Bailees  fraudulently  converting  property.  By  s.  3,  "  whosoever, 
being  a  bailee  of  any  chattel,  money,  or  valuable  security,  shall 
fraudulently  take  or  convert  the  same  to  his  own  use  or  the  use  of 
any  person  other  than  the  owner  thereof,  although  he  shall  not  break 
bulk  or  otherwise  determine  the  bailment,  shall  be  guilty  of  larceny, 
and  may  be  convicted  thereof  upon  an  indictment  for  larceny ;  but 
this  section  shall  not  extend  to  any  offence  punishable  on  summary 
conviction." 

Punishment  for  simple  larceny.  By  s.  4,  "  whosoever  shall  be 
convicted  of  simple  larceny,  or  of  any  felony  hereby  made  punishable 
like  simple  larceny,  shall  (except  in  the  cases  hereinafter  otherwise 
provided  for)  be  liable,  at  the  discretion  of  the  court,  to  be  kept  in 
penal  servitude  for  the  term  of  three  [now  five]  years,  or  to  be  im- 
prisoned for  any  term  not  exceeding  two  years,  with  or  without 
hard  labor,  and  with  or  without  solitary  confinement,  and  if  a  male, 
under  the  age  of  sixteen  years,  with  or  without  a  whipping." 

Three  larcenies  within  six  months  may  be  charged  in  one  in- 
dictment. By  s.  5,  "  it  shall  be  lawful  to  insert  several  counts  in  the 
same  indictment  against  the  same  person  for  any  number  of  distinct 
acts  of  stealing,  not  exceeding  three,  which  may  have  been  committed 
by  him  against  the  same  person  within  the  space  of  six  months  from 
the  first  to  the  last  of  such  acts,  and  to  proceed  thereon  for  all  or  any 
of  them.i' 

Election.  By  s.  6,  "  if  upon  the  trial  of  any  indictment  for  larceny 
it  shall  appear  that  the  property  alleged  in  such  indictment  to  have 
been  stolen  at  one  time  was  taken  at  different  times,  the  prosecutor 
shall  not  by  reason  thereof  be  required  to  elect  upon  which  taking  he 
will  proceed,  unless  it  shall  appear  that  there  were  more  than  three 
takings,  or  that  more  than  the  space  of  six  months  elapsed  between 
the  first  and  the  last  of  such  takings ;  and  in  either  of  such  last- 
mentioned  cases  the  prosecutor  shall  be  required  to  elect  to  pi'oceed 
for  such  number  of  takings,  not  exceeding  three,  as  appear  to  have 
*fi491  *^ken  place  within  tlie  period  of  six  months  from  the  first  to 
-'  the  last  of  such  takings."' 

*  Election  is  not  compulsory  between  a  count  for  larceny  and  one  for  receiving 
stolen  goods.  Andrews  v.  People,  117  111.  195.  Election  is  not  compulsory  between 
several  counts  for  larceny  unless  pressed  for  by  the  defendant.  People  v.  lieavey,  4  N. 
y.  Crim.  Rep.  1. 


LARCENY.  809 

Larceny  after  a  previous  conviction  for  felony.  By  s.  7,  "  who- 
soever shall  commit  the  offence  of  simple  larceny  after  a  previous 
conviction  for  felony,  whether  such  conviction  shall  have  taken  place 
upon  an  indictment  or  under  the  provisions  of  the  Act  passed  in  the 
session  held  in  the  eighteenth  and  nineteenth  years  of  Queen  Victoria, 
chapter  one  hundred  and  twenty-six,  shall  be  liable,  at  the  discretion 
of  the  court,  to  be  kept  in  penal  servitude  for  any  term  not  exceed- 
ing ten  years,  and  not  less  than  three  [now  five]  years,  or  to  be 
imprisoned  for  any  term  not  exceeding  two  years,  with  or  with- 
out hard  labor,  and  with  or  without  solitary  confinement,  and,  if  a 
male  under  the  age  of  sixteen  years,  with  or  without  whipping."^ 

Larceny  after  a  conviction  for  misdemeanor.  By  s.  8,  "  whoso- 
ever shall  commit  the  offence  of  simple  larceny,  or  any  offence  hereby 
made  punishable  like  simple  larceny,  after  having  been  previously  con- 
victed of  any  indictable  misdemeanor  punishable  under  this  Act, 
shall  be  liable,  at  the  discretion  of  the  court,  to  be  kept  in  penal  servi- 
tude for  any  term  not  exceeding  seven  years  and  not  less  than  three 
[now  five]  years,  or  to  be  imprisoned  for  any  term  not  exceeding  two 
years,  with  or  without  iiard  labor,  and  with  or  without  solitary  con- 
finement, and,  if  a  male  under  the  age  of  sixteen  years,  with  or  without 
whipping." 

Larceny  after  two  summary  convictions.  By  s.  9,  "  whosoever 
shall  commit  the  offence  of  simple  larceny,  or  any  offence  hereby  made 
punishable  like  simple  larceny,  after  having  been  twice  summarily 
convicted  of  any  of  the  offences  punishable  upon  summary  conviction, 
under  the  provisions  contained  in  the  Act  of  the  session  held  in  the 
seventh  and  eighth  years  of  King  George  the  Fourth,  chapter  twenty- 
nine,  or  the  Act  of  the  same  session,  chapter  thirty,  or  the  Act  of  the 
ninth  year  of  King  George  the  Fourth,  chapter  fifty-five,  or  the  Act  of 
the  same  year,  chapter  fifty-six,  or  the  Act  of  the  sessions  held  in  the 
tenth  and  eleventh  years  of  Queen  Victoria,  chapter  eighty-two,  or 
of  the  Act  of  the  session  held  in  the  eleventh  and  twelfth  years  of 
Queen  Victoria,  chapter  fifty-nine,  or  in  sections  three,  four,  five,  and 
six  of  the  Act  of  the  session  held  in  the  fourteenth  and  fifteenth  years 
of  Queen  Victoria,  chapter  ninety-  two,  or  in  this  Act,  or  the  Act  of  this 
session,  intituled  an  Act  to  consolidate  and  amend  the  statute  law  of 
England  and  Ireland  relating  to  malicious  injuries  to  property 
(whether  each  of  the  convictions  shall  have  been  in  respect  of  an 
offence  of  the  same  description  or  not,  and  whether  such  convictions 
or  either  of  them  shall  have  been  or  shall  be  before  or  after  the  passing 
of  this  Act),  shall  be  guilty  of  felony,  and  being  convicted  thereof 
shall  be  liable,  at  the  discretion  of  the  court,  to  be  kept  in  penal  serv- 
itude for  any  term  not  exceeding  seven  years,  and  not  less  than  three 
[now  five]  years,  or  to  be  imprisoned  for  any  term  not  exceeding  two 

1  In  such  cases  the  facts  necessary  to  bring  tlie  case  within  the  statute  must  be 
proved.  It  cannot  be  objected  that  such  evidence  tends  to  prove  bad  character.  John- 
son V.  People,  55  N.  Y.  512. 


810  LARCENY. 

years,  with  or  without  hard  labor,  and  with  or  without  solitary  con- 
fiiienicnt,  and,  if  a  male  under  the  age  of  sixteen  years,  with  or  with- 
out whipping." 

Larceny  by  servant.  By  s.  67,  "whosoever,  being  a  clerk  or 
servant,  or  being  employed  for  the  purpose  or  in  the  capacity  of  a 
*fi4'^1  *cl^'^^^  ^^  servant,  shall  steal  any  chattel,  money,  or  valuable  se- 
-l  curity  belonging  to  or  in  the  possession  or  power  of  his  master 
or  employer,  shall  be  guilty  of  felony,  and  being  convicted  thereof 
shall  be  liable,  at  the  discretion  of  the  court,  to  be  kept  in  penal  ser- 
vitude for  any  term  not  exceeding  fourteen  years,  and  not  less  than 
three  [now  five]  years,  or  to  be  imprisoned  for  any  term  not  exceeding 
two  years,  with  or  without  hard  labor,  and  with  or  without  solitary 
confinement,  and,  if  a  male  under  the  age  of  sixteen  years,  with 
or  without  whipping," 

Larceny  by  persons  in  the  Queen's  service  or  in  the  police.    By 

s.  69,  "  whosoever,  being  employed  in  the  public  service  of  her  Ma- 
jesty, or  being  a  constable  or  other  person  employed  in  the  police  of" 
any  county,  city,  borough,  district,  or  place  whatsoever,  shall  steal  any 
chattel,  money,  or  valuable  security  belonging  to  or  in  the  possession 
or  power  of  her  Majesty,  or  intrusted  to,  or  received,  or  taken  into 
possession  by  him  by  virtue  of  his  employment,  shall  be  guilty  of 
felony,  and  being  convicted  thereof  shall  be  liable,  at  the  discretion  of 
the  court,  to  be  kept  in  penal  servitude  for  any  term  not  exceeding 
fourteen  years,  and  not  less  than  three  [now  five]  years,  or  to  be  im- 
prisoned for  any  term  not  exceeding  two  years,  with  or  without  hard 
labor,  and  with  or  without  solitary  confinement." 

Conviction  for  larceny  on  indictment  for  embezzlement,  and  vice 
versa.  By  s.  72,  "  if  upon  the  trial  of  any  person  indicted  for  em- 
bezzlement or  fraudulent  application  or  disposition  as  aforesaid,  it 
shall  be  proved  that  he  took  the  property  in  question  in  any  such 
manner  as  to  amount  in  law  to  larceny,  he  shall  not  by  reason 
thereof  be  entitled  to  be  acquitted,  but  the  jury  shall  be  at  liberty  to 
return  as  their  verdict  that  such  person  is  not  guilty  of  embezzlement, 
or  fraudulent  application  or  disposition,  but  is  guilty  of  simple  lar- 
ceny, or  of  larceny  as  a  clerk,  servant,  or  person  employed  for  the 
purpose  or  in  the  capacity  of  a  clerk  or  servant,  or  as  a  person  em- 
ployed in  the  public  service,  or  in  the  police,  as  the  case  may  be ; 
and  thereupon  such  person  shall  be  liable  to  be  punished  in  the  same 
manner  as  if  he  had  been  convicted  upon  an  indictment  for  such  lar- 
ceny ;  and  if  upon  the  trial  of  any  person  indicted  for  larceny  it 
shall  be  proved  that  he  took  the  property  in  question  in  any  such 
manner  as  to  amount  in  law  to  embezzlement,  or  fraudulent  appli- 
cation or  disposition  as  aforesaid,  he  shall  not  by  reason  thereof  be 
entitled  to  be  acquitted,  but  the  jury  shall  be  at  liberty  to  return  as 
their  verdict  that  such  person  is  not  guilty  of  larceny,  but  is  guilty 
I  pf  embezzlement  or  fraudulent  application  or  disposition,  as  the  case 


LARCENY.  811 

may  be,  and  thereupon  such  person  shall  be  liable  to  be  punished  in 
the  same  manner  as  if  he  had  been  convicted  upon  an  indictment  for 
such  embezzlement,  fraudulent  application  or  disposition;  and  no  per- 
son so  tried  for  embezzlement,  fraudulent  application  or  disposition, 
or  larceny  as  aforesaid,  shall  be  liable  to  be  afterwards  prosecuted  for 
larceny,  fraudulent  application  or  disposition,  or  embezzlement,  upon 
the  same  facts." 

Venue.  By  s.  114,  "if  any  person  shall  have  in  his  possession  in 
any  one  part  of  the  United  Kingdom  any  chattel,  money,  valuable 
security,  or  other  property  whatsoever  which  he  shall  have  stolen  or 
♦otherwise  feloniously  taken  in  any  other  part  of  the  United  r^pj^j^ 
Kingdom,  he  may  be  dealt  with,  indicted,  tried,  and  punished  L 
for  larceny  or  theft  in  that  part  of  the  United  Kingdom  where  he  shall 
so  have  such  property  in  the  same  manner  as  if  he  had  actually  stolen 
or  taken  it  in  that  part ;  and  if  any  person  in  any  one  part  of  the  United 
Kingdom  shall  receive  or  have  any  chattel,  money,  valuable  security, 
or  other  property  whatsoever  which  shall  have  been  stolen  or  otherwise 
feloniously  taken  in  any  other  part  of  the  United  Kingdom,  such  per- 
son knowing  such  property  to  have  been  stolen  or  otherwise  feloniously 
taken,  he  may  be  dealt  with,  indicted,  tried,  and  punished  for  such  of- 
fence in  that  part  of  the  United  Kingdom  where  he  shall  so  receive  or 
have  such  property,  in  the  same  manner  as  if  it  had  been  originally 
stolen  or  taken  in  that  part." 

Larceny  of  property  of  partners,  etc.  By  the  7  Geo.  4,  c.  64,  s. 
_4,  (the  9  Geo.  4,  c.  54,  s.  28,  I.),  in  order  to  remove  the  difficulty  of 
stating  the  names  of  all  the  owners  of  property  in  the  case  of  partners 
and  other  joint  owners,  it  is  eilacted  that,  "  in  any  indictment  or 
information  for  any  felony  or  misdemeanor,  wherein  it  shall  be  requi- 
site to  state  the  ownership  of  any  property  whatsoever,  whether  real 
or  personal,  which  shall  belong  to  or  be  in  the  possession  of  more 
than  one  person,  whether  such  persons  be  partners  in  trade,  joint- 
tenants,  parceners,  or  tenants  in  common,  it  shall  be  sufficient  to 
name  one  of  such  persons,  and  to  state  such  property  to  belong  to 
the  person  so  named,  and  another  or  others,  as  the  case  may  be  ;  and 
whenever,  in  any  indictment  or  information  for  any  felony  or  misde- 
meanor, it  shall  be  necessary  to  mention,  for  any  purpose  whatsoever, 
any  partners,  joint-tenants,  parceners,  or  tenants  in  common,  it  shall 
be  sufficient  to  describe  them  in  the  manner  aforesaid  ;  and  the  pro- 
vision shall  be  construed  to  extend  to  all  joint-stock  companies  and 
trustees." 

Under  a  statute  of  the  same  session,  the  7  Geo.  4,  c.  46,  s.  9,  in 
indictments  or  informations  by  or  on  behalf  of  joint-stock  banking 
co-partnerships,  for  stealing  or  embezzling  money,  goods,  eifects,  bills, 
notes,  securities,  or  other  property  belonging  to  them,  or  for  any 
fraud,  forgery,  crime,  or  offence  committed  against  or  with  intent  to 
injure  or  defraud  such  co-partnership,  the  money,  etc.,  may  be  stated 
to  be  the  prooerty  of,  and  the  intent  may  be  laid  to  defraud,  any  one 


812  LARCENY. 

of  the  public  officers  of  such  co-partnership,  and  the  name  of  any  one 
of  their  public  officers  may  be  used  in  all  indictments  or  informations,' 
where  it  otherwise  would  be  necessary  to  name  the  persons  forming 
the  company. 

The  7  Geo.  4,  c.  46,  was  amended  and  continued  by  the  1  &  2  Vict. 
0.  96,  which  was  made  perpetual  by  the  5  &  6  Yict.  c.  85,  and  under 
which  a  shareholder  in  a  joint-stock  banking  company  may  be  in- 
dicted for  stealing  or  embezzling  the  goods  or  money  of  tlie  company, 
it  being  laid  as  the  property  of  a  public  officer  of  the  company,  duly 
appointed  and  registered  under  the  Acts.  As  to  the  other  offences  by 
members  of  joint-stock  banks,  see  3  &  4  Vict.  c.  Ill,  s.  2,  which  as 
to  the  offences  of  stealing  and  embezzling  merely  is  repealed  by  the 
Statute  Law  Revision  Act,  1874  (2). 

By  the  31  &  32  Vict.  c.  116,  s.  1,  "if  any  person,  being  a  mem- 
ber of  any  co-partnership,  or  being  one  of  two  or  more  beneficial  own- 
ers of  any  money,  goods,  or  effects,  bills,  notes,  securities,  or  other  prop- 
erty, shall  steal  or  embezzle  any  such  money,  goods,  or  effects,  bills, 
*fi4.'"1  ^^^o^"^?  or  security,  or  other  property  of  or  belonging  to  any 
-I  such  co-partnership,  or  to  such  joint  beneficial  owners,  every 
such  person  shall  be  liable  to  be  dealt  with,  tried,  convicted,  and  pun- 
ished for  the  same  as  if  such  person  had  not  been  or  was  not  a  mem- 
ber of  such  co-partnership,  or  one  of  such  beneficial  owners." 

Larceny  of  property  of  counties,  etc.  By  the  7  Geo.  4,  c.  64,  s. 
15,  "  in  any  indictment  or  information  for  any  felony  or  misdemeanor 
committed  in,  upon,  or  with  respect  to  any  bridge,  court,  gaol,  house 
of  correction,  infirmary,  asylum,  or  other  building,  erected  or  main- 
tained in  whole,  or  in  part,  at  the  expense  of  any  county,  riding,  or 
division,  or  on  or  witli  respect  to  any  goods  or  chattels  whatsoever, 
provided  for  at  the  expense  of  any  county,  riding,  or  division,  to  be 
used  for  making,  altering,  or  repairing  any  bridge,  or  any  highway  at 
the  ends  thereof,  or  any  court  or  other  such  building,  as  aforesaid,  or 
to  be  used  in  or  with  any  such  court  or  other  building,  it  shall  be 
sufficient  to  state  any  such  pro])erty,  real  or  personal,  to  belong  to  the 
inhabitants  of  such  county,  riding,  or  division  ;  and  it  shall  not  be 
necessary  to  specify  the  names  of  any  such  inhabitants."  The  9  Geo. 
4,  c.  54,  s.  29  (I,),  contains  a  somewhat  similar  enactment. 

Larceny  of  goods  for  the  use  of  the  poor.  By  the  7  Geo,  4,  c. 
64,  s.  16,  with  respect  to  the  property  of  parishes,  townships,  and 
hamlets,  it  is  enacted,  that,  "  in  any  indictment  or,  information  for  any 
felony  or  misdemeanor  committed  in,  upon,  or  with  respect  to  any 
workhouse,  or  poorhouse,  or  on  or  with  respect  to  any  goods  or  chat- 
tels whatsoever,  provided  for  the  use  of  the  poor  of  any  parish  or  par- 
ishes, township  or  townships,  hamlet  or  hamlets,  place  or  places,  or  to 
be  used  in  any  workhouse  or  poorhouse  in  or  belonging  to  the  same, 
or  by  the  master  or  mistress  of  such  workhouse  or  poorhouse,  or  by 
any  workmen  or  servants  employed  therein,  it  shall  be  sufficient  to 
state  any  such  property  to  belong  to  the  overseers  of  the  poor  for  the 


LARCENY.  813 

time  being  of  such  parish  or  parishes,  township  or  townships,  hamlet 
or  hamlets,  place  or  places,  and  it  shall  not  be  necessary  to  specify  the 
names  of  all  or  any  of  such  overseers ;  and  in  any  indictment  or  in- 
formation for  any  felony  or  misdemeanor  committed  on  or  with  respect 
to  any  materials,  tools,  or  implements  provided  for  making,  altering, 
or  repairing  any  highway  within  the  parish,  township,  hamlet,  or  plac^e, 
otherwise  than  by  the  trustees  or  commissioners  of  any  turnpike  road, 
it  shall  be  sufficient  to  aver  that  any  such  things  are  the  property  of 
the  surveyor  or  surveyors  of  the  highways  for  the  time  being  of  such 
parish,  township,  hamlet,  or  place,  and  it  shall  not  be  necessaiy  to 
specify  the  name  or  names  of  any  such  surveyor  or  surveyors." 

By  the  12  &  13  Vict.  c.  103,  s.  15,  it  is  provided,  that,  "in  respect 
of  any  indictment  or  other  criminal  proceeding,  every  collector  or 
assistant  overseer  appointed  under  the  authority  of  any  order  of  the 
poor  law  commissioners  or  the  poor  law  board,  shall  be  deemed  and 
taken  to  be  the  servant  of  the  inhabitants  of  the  parish  whoso  money 
or  other  property  he  shall  be  charged  to  have  embezzled  or  stolen,  and 
shall  be  so  described ;  and  it  shall  be  sufficient  to  state  such  money  or 
property  to  belong  to  the  inhabitants  of  such  parish,  without  the 
names  of  any  such  inhabitants  being  specified." 

*  Larceny  of  property  of  trustees  of  turnpikes.  By  the  7  r^p^n 
Geo.  4,  c.  64,  s.  1 7,  with  respect  to  property  under  turnpike  trusts,  •- 
it  is  enacted,  that,  "in  any  indictment  or  information  for  any  felony  or 
misdemeanor  committed  .on  or  with  respect  to  any  house,  building,  gate, 
macliine,  lamp,  board,  stone,  post,  fence,  or  other  thing  erected  or  pro- 
vided in  pursuance  of  any  Act  of  parliament  for  making  any  turn- 
pike road,  or  any  of  the  conveniences  or  appurtenances  thereunto  re- 
spectively belonging,  or  any  materials,  tools,  or  implements  provided 
for  making,  altering,  or  repairing  any  such  road,  it  shall  be  sufficient 
to  state  any  such  property  to  belong  to  the  trustees  or  commissioners 
of  such  road,  and  it  shall  not  be  necessary  to  specify  the  names  of  any 
such  trustees  or  commissioners." 

Larceny  of  property  of  commissioners  of  sewers,  etc.     By  the 

7  Geo.  4,  c.  64,  s.  18,  with  respect  to  property  under  commissioners  of 
sewers,  it  is  enacted,  that  "  in  any  indictment  or  information  for  any 
felony  or  misdemeanor  committed  in  or  with  respect  to  any  sewer  or 
other  matter  within  or  under  the  view,  cognizance,  or  management  of 
any  commissioners  of  sewers,  it  shall  be  sufficient  to  state  any  such 
property  to  belong  to  the  commissioners  of  sewers  within  or  under 
whose  view,  cognizance,  or  management,  any  such  thing  shall  be,  and 
it  shall  not  be  necessary  to  specify  the  names  of  any  of  such  commis- 
sioners." 

Larceny  of  property  of  friendly  societies,  etc.  By  the  Friendly 
Societies  Act,  1<S75,  38  &  39  Vict.  c.  60,  s.  16,  subs.  -3,  property  be- 
longing to  friendly  societies  vests  in  the  trustees  for  the  time  being; 
and  by  sect.  21,  subs.  1,  the  trustees  or  officers  authorized  by  the  rules 


814  LARCENY. 

thereof,  may  bring  or  defend,  any  action,  suit,  or  other  legal  proceed- 
ing in  any  court  whatsoever. 

Larceny  of  property  of  loan  societies.  By  3  &  4  Vict.  c.  110, 
s.  8,  all  moneys  and  securities  for  money,  and  all  chattels  whatsoever, 
belonging  to  any  society,  are  vested  in  trustees,  who  may  bring  or  de- 
fend any  suit,  criminal  as  well  as  civil,  at  law  or  in  equity,  concerning 
the  property  or  any  claim  of  such  society,  and  sue  and  be  sued,  plead 
and  be  impleaded  in  their  proper  names  as  trustees  of  such  society, 
without  any  other  description,  etc. 

Larceny  of  property  of  building  and  industrial  societies.     By 

37  &  38  Vict.  c.  42  (the  Building  Society  Act,  1874),  s.  9,  every 
society,  upon  receiving  a  certificate  of  incorporation  under  this  Act, 
becomes  a  body  corporate  by  its  registered  name.  Repealed  39  &  40 
Vict.  c.  45,  sched.  And  by  39  &  40  Vict.  c.  45  (Industrial  and 
Provident  Societies  Act,  1876),  s.  11,  the  registration  of  every 
society  under  the  Act  renders  it  a  body  corporate  by  its  registered 
name. 

Larceny,  etc.,  of  property  of  trades  unions.  By  the  32  &  33 
Vict.  c.  61,  the  property  of  trades  unions  was  placed  under  the  protec- 
tion of  the  Friendly  Societies  Acts,  but  this  statute  has  been  repealed 
except  as  to  things  done  before  the  passing  of  the  repealing  Act,  and 
the  aifairs  of  trades  unions  are  now  regulated  by  the  34  &  35  Vict, 
c.  31,  s.  8,  amended  by  39  &  40  Vict.  c.  22,  s.  3,  by  which  the  property 
of  a  registered  trade  union  is  vested  in  trustees,  and  may  be  stated  to 
be  their  property  in  any  indictment  in  their  proper  names  as  trustees 
*fi4.71  **^^  ''^^^^^  trade  union  without  further  description.  Section  9 
-■  further  provides  for  the  carrying  on  of  a  prosecution  in  case  of 
death  or  removal  from  office  of  a  trustee.  Section  1 2  provides  that  no 
person  shall  be  proceeded  against  by  indictment  if  a  conviction 
shall  have  been  previously  obtained  for  the  same  offence  under  that 
act. 

Larceny  of  property  of  savings  banks.  The  26  &  27  Vict.  c.  87, 
s.  10,  vests  the  effects,  securities,  etc.,  of  savings  banks  in  the  trustees 
for  the  time  being,  and  provides  that  in  all  criminal  proceedings  the 
property  may  be  laid  in  them  in  their  proper  names  without  further 
description. 

Larceny  of  property  of  Her  Majesty's  Customs.  By  the  Cus- 
toms Laws  Consolidation  Acts,  39  &  40  Vict.  c.  36,  s.  29,  any 
moneys,  cliattels,  or  other  valuable  securities  which  may  be  received 
in  tlie  service  of  the  customs  may  be  laid  as  the  property  of  Her 

Majesty. 

Summary  Jurisdiction.  By  the  42  &  43  Vict.  c.  49,  simple  lar- 
ceny, larceny  from  the  person,  larceny  as  a  clerk  or  servant,  and  aid- 


LARCENY.  815 

ing  and  abetting  the  commission  of  those  oifences,  may,  in  the  case  of 
young  persons  consenting  and  adults  pleading  guilty,  be  dealt  with 
summarily,  and  in  the  case  of  an  adult  consenting,  if  the  value  of  the 
property  does  not  exceed  40s.,  the  offence  may  be  dealt  with  in  like 
manner. 

Definition  of  larceny.  The  definitions  of  larceny  to  be  found  in 
the  various  books  are  mostly  derived  from  Bracton,  lib.  iii.  c.  32,  p. 
150,  "fu7'tum  est  tractatio  rei  alienee  fraudulenta,  animo  furandi,  invito 
illo  cujus  ilia  resfuerit."  This  is  evidently  derived  from  the  definition 
of  furfuin  given  by  the  Roman  law,  Inst.  lib.  iv.  tit.  1,  s.  1  ;  ^'furtum 
est  contractatio  fraudulosa  lucri  faciendi  causd  vel  ipsius  rei,  vel  etiam 
itSMs  ejus  possessionisve."  The  latter,  however,  is  not  the  definition 
of  a  crime,  but  of  a  civil  trespass,  giving  rise  to  the  actio  furti.  The 
words  animo  furandi  in  the  former,  and  lucri  cau^d  in  the  latter,  have 
a  somewhat  similar  signification.  The  corresponding  phrase  of  mod- 
ern law  is  "  with  a  felonious  intent :"  thus  Mr.  East  defines  larceny 
to  be  "the  wrongful  or  fraudulent  taking  and  carrying  away  by  one 
person  of  the  mere  personal  goods  of  another  with  a  felonious  intent 
to  convey  them  to  his  (the  taker's)  own  use,  and  make  them  his  own 
property,  without  the  consent  of  the  owner."^  2  East,  P.  C.  553.  In 
R.  V.  Holloway,  1  Den.  C.  C.  370,  Parke,  B.,  cited  this  definition  with 

*  Wheel.  C.  C.  165,  536 ;  3  Id.  511.  To  constitute  larceny,  an  intent  on  the  part  of 
the  person  taking  the  property  to  convert  it  to  his  own  use  is  not  necessary.  People 
V.  Juarez,  28  Cal.  380.  In  larceny  the  intent  to  steal  must  exist  at  the  time  of  taking 
the  property,  it  is  not  enough  that  the  prisoner  have  such  intent  at  the  time  of  con- 
verting it  to  his  own  use.  Wilson  v.  People,  39  N.  Y.  459.  See  State  v.  Coombs,  55 
Me.  477  ;  »State  v.  Brown,  25  la.  561.  Falsely  personating  the  owner  of  property  and 
thereby  obtaining  possession  with  felonious  intent  is  larceny.  Commonwealth  v.  Col- 
lins, 12  Allen,  181.  A  person  who  aids  and  abets  a  larceny  if  near  by  the  thieves  at 
the  time  thereof,  is  a  participant  in  the  taking  and  guilty  of  larceny.  Hogsett  v. 
State,  40  Miss.  522.  S.,  induced  by  the  manoeuvres  of  three  fellow-passengers  on  a 
railroad  car,  made  a  wager  with  one  of  them  and  deposited  his  stake  with  P.,  another 
of  them.  The  opposite  stake  proved  to  be  only  waste  paper,  but  P.  after  the  discov- 
ery refused  to  give  up  S.'s  money ;  held  that  the  three  confederates  were  guilty  of 
larceny.  Stinson  v.  People,  43  III.  397.  Taking  must  be  without  color  of  right  or 
excuse  and  with  intent  to  deprive  the  owner  not  temporarily  but  permanently  of  his 
property.  Fields  v.  State,  6  Cold.  524.  Illuminating  gas  may  be  the  subject  of  lar- 
ceny. Commonwealth  v.  Shaw,  4  Allen,  308.  [State  v.  Wellman,  7  Crim.  Law  Mag. 
257.]  Intoxicating  liquor  though  purchased  and  intended  to  be  sold  in  violation  of 
law  is  a  subject  of  larceny.  Commonwealth  v.  Shaw,  4  Allen,  308.  A  nugget  of  gold 
separated  from  the  vein  by  natural  causes,  savors  of  the  realty  and  is  not  a  subject  of 
larceny,  until  after  its  removal  from  the  pile  of  rocks  by  other  causes.  State  v.  Burt, 
64  N.  C.  619.  Severing  and  taking  away  by  one  act  a  growing  crop  is  not  a  criminal 
offence.  Comfort  ?'.  Fulton,  39  Barb.  56.  Box  of  matches  on  counter  to  be  used  in 
lighting  segars.  Mitch eson  v.  State,  45  Ala.  27.  As  to  beasts /ercE  natiirce,  see  State 
V.  House,  65  N.  C.  315.    S. 

Turpentine  which  has  run  out  of  the  trees  into  boxes  cut  into  the  tree  for  the  pur- 
pose of  receiving  the  liquid  is  the  subject  of  larceny.  State  r.  Moore,  11  Ired.  (N.  C.) 
70.  Ice  when  put  away  for  domestic  us6  becomes  individual  property,  so  as  to  be 
the  subject  of  larceny.  Ward  v.  People,  3  Hill,  (N.  Y.)  395.  s.  c.  6  Hill,  (N.  Y.) 
144 ;  but  while  still  on  the  stream,  pond,  etc.,  to  remove  it  is  trespass  and  not  larceny. 
State  r.  Pottmeyer,  33  Ind.  402 ;  Mill  River  Manf.  Co.  v.  Smith,  34  Conn.  462.  There 
can  be  no  larceny  of  a  dead  body,  2  East,  P.  C.  652;  Corven's  Case,  12  Coke,  106, 
Eraser's  note.  See  the  Am.  Law  Times,  July,  1871,  127.  But  it  is  felony  to  steal  a 
shroud.    Haynes'  Case,  12  Coke,  113 ;  Wonson  v.  Sayward,  13  Pick.  (Mass.)  402. 


816  LARCENY. 

approbation,  but  seemed  to  think  it  did  not  state  quite  sufficiently  that, 
the  takinj^  must  be  without  any  claim  of  right ;  but  perhaps  that  is 
suificiently  expressed  by  the  word  felonious.  It  is  erroneous  in  other 
respects.  Eyre,  C.  B.,  in  the  definition  given  by  him,  retained  the 
words  lucri  causd;  thus  in  R.  v.  Pear,  2  East,  P.  C.  685,  he  says, 
"larceny  is  the  wrongful  taking  of  goods  with  intent  to  spoil  the 
owner  of  them  lucri  causcV  And  Blackstone  says,  "the  taking  must 
be  felonious,  that  is,  done  animo  furandi,  or,  as  the  civil  law  ex])resses 
it,  lucri  causd;^'  4  Com.  232.  The  point  aimed  at  by  these  two  ex- 
pressions, animo  furandi  and  lucri  causd,  the  meaning  of  which  has 
been  much  discussed,  seems  to  be  this ;  that  the  goods  must  be  taken 
into  the  possession  of  the  thief  with  the  intention  of  depriving  the 
owner  of  his  property  in  them. 

It  may  be  remarked  here,  once  for  all,  that  everything  in  larceny, 
*ft4Sl  *^^^^^  t^^^  kindred  offences  of  embezzlement  and  obtaining  by 
J  false  pretences,  depends  on  a  clear  appreciation  of  the  difference 
between  jjossession  and  property.  Whether  or  no  a  thing  is  in  our 
possession  is  altogether  a  question  of  fact ;  but  it  is  nevertheless  a 
question,  the  decision  of  which  is  regulated  by  the  law.  The  rules 
laid  down  on  this  subject  by  the  law  are,  as  in  all  such  cases  they 
necessarily  must  be,  arbitrary  to  this  extent,  namely,  that  there  are 
cases  on  both  sides  of  the  line  in  which  the  application  of  the  rule  is 
unsatisfactory.  But  this  inconvenience  is  balanced  by  the  advantage 
of  having  a  settled  line. 

Possession,  in  the  sense  in  which  it  is  used  in  English  law,  extends 
not  only  to  those  things  of  which  we  have  manual  prehension,  but 
those  which  are  in  our  house,  on  our  land,  or  in  the  possession  of  those 
under  our  control,  as  our  servants,  children,  etc.,  see  R.  v.  Wright,  and 
R.  17.  Reid,  infra,  p.  670. 

Property  is  the  right  to  the  possession,  coupled  with  an  ability  to 
exercise  that  right.  Bearing  this  in  mind,  we  may  perhaps  safely  de- 
fine larceny  as  follows  : — the  wrongful  taking  possession  of  the  goods 
of  another  with  intent  to  deprive  the  owner  of  his  property  in  them.^ 
It  is  not  necessary  to  add  to  this  definition  the  words  "without  any 
claim  of  right  by  the  taker ;"  as  that  is  excluded  by  the  latter  branch 
of  the  definition  relating  to  the  intent.  Nor  is  -it  necessary  to  say  that 
the  taking  must  be  "against  the  will  of  the  owner,"  because  that  is  in- 
cluded in  the  word  "  wrongful." 

It  will  be  seen  that  most  of  the  decided  cases  accord  with  this  view. 
Thus  it  has  been  held  that  though  in  taking  possession  of  the  article, 
the  intention  of  the  taker  is  to  destroy  it,  and  that  he  never  contem- 
plated any  acquisition  of  property  himself,  it  is  still  larceny,  because 
he  intends  to  deprive  the  owner  of  his  property.  As  in  R.  v.  Cabbage, 
Russ.  &  Ry.  292,  where  the  prisoner  was  charged  with  stealing  a  horse. 
He  went  to  the  stable,  took  out  the  horse,  led  it  to  a  coal  pit,"  and  backed 
it  into  the  shaft,  and  this  was  hold  to  be  larceny.  Upon  this  case  it  is 
observed  in  the  report  of  the  criminal  laAV  commissioners  (p.  17),  that 

'  Where  title  remains  in  the  owner  it  is  hvrceny ;  where  the  title  passes  it  is  obtain- 
ing property  on  false  pretences.     People  v,  Rae,  (36  Cal.  423. 


LARCENY.  817 

where  the  removal  is  merely  nominal,  and  the  motive  is  that  of  injury 
to  the  owner,  the  offence  is  scarcely  distinguishable  from  that  of  ma- 
licious mischief  This  may  sometimes  be  so,  but  there  is  at  the  same 
time  a  very  clear  distinction  between  depriving  a  person  of  his  prop- 
erty, and  injuring  his  property  without  depriving  him  of  it.  A  simi- 
lar case  was  that  of  li.  v.  Jones,  1  Den.  C.  C.  193,  where  a  servant, 
after  her  discharge,  applied  at  the  post  office  and  received  her  master's 
letters ;  she  delivered  all  but  one  to  her  master,  and  that  one  she  de- 
stroyed, with  a  view  of  suppressing  inquiries  with  reference  to  her 
character.     This  was  held  to  be  larceny. 

On  the  other  hand,  it  is  clearly  laid  down  that  although  the  party 
may  wrongfully  take  possession  of  the  goods,  yet  unless  he  intend  to 
deprive  the  owner  of  his  property  therein,  this  is  a  trespass  only  and 
not  larceny ;  as  in  the  numerous  cases  where  the  evidence  clearly 
shows  that  the  prisoner  merely  intended  to  borrow  the  goods  for 
a  short  time,  and  then  return  them.  These  cases  are  collected,  infra, 
p.  672. 

An  unauthorized  gift  by  a  servant  of  his  master's  goods  is  as  much 
a  felony  as  if  he  had  sold  or  pawned  them.  Per  Erskine,  J.,  R.  v. 
White,"  9  C.  &  P.  344,  38  E.  C.  L. 

The  distinction  between  grand  and  petit  larceny  was  abolished  by 
Hhe  7  &  8  Geo.  4,  c.  29,  s.  2.  See  24  &  25  Vict.  c.  96,  s.  2,  p^^^ 
supra,  p.  641.^  ^ 

Proof  of  the  taking.  The  following  in  the  definition  of  a  felonious 
taking  given  by  the  criminal  law  commissioners  :  "  The  taking  and 
carrying  away  are  felonious,  where  the  goods  are  taken  against  the 
will  of  the  owner,  either  in  his  absence,  or  in  a  clandestine  man- 
ner, or  where  possession  is  obtained  either  by  force  or  surprise,  or 
by  any  trick,  device,  or  frauduleut  expedient,  the  owner  not  vol- 
untarily parting  with  his  entire  interest  in  the  goods ;  and  where 
the  taker  intends  in  any  such  case  fraudulently  to  deprive  the  owner 
of  the  entire  interest  in  the  property  against  his  will."  1st.  Rep.  p. 
16.^  To  these  ought  to  be  added  cases  where  goods  are  obtained  by 
menaces,  R.  v.  McGrath,  L.  R.  1  C.  C.  R.  205 ;  39  L.  J.,  M.  C.  7  ; 
R.  V.  Lovell,  8  Q.  B.  D.  185 ;  50  L.  J.,  M.  C.  91,  post,  p.  664  ;  and 
as  to  cases  where  the  possession  has  been  obtained  in  consequence 
of  a  mistake  on  the  part  of  the  prosecutor,  and  the  property  has  not 
passed,  R.  v.  Middleton,  post,  p.  652,  L.  R.  2  C.  C.  R.  38 ;  42  L. 
J.,  M.  C.  73. 

Where  goods  are  once  taken  with  a  felonious  intent,  the  offence 
cannot  be  purged  by  a  restoration  of  them  to  the  owner.  Thus  the 
prisoner,  having  robbed  the  prosecutor  of  a  purse,  returned  it  to  him 
again,  saying,  "  If  you  value  the  purse  take  it,  and  give  me  the  con- 

^  Larceny  from  a  dwelling  is  grand  larceny  witliout  reference  to  amount  stolen. 
State  V.  Kennedy,  88  Mo.  341. 

"  The  prosecution  must  affirmatively  prove  tliat  the  taking  was  without  the  consent 
of  the  owner,  either  by  direct  or  circumstantial  evidence.  McMahon  v.  State,  1  Tex. 
App.  102. 

52 


818  LARCENY. 

tents,"  but  before  the  prosecutor  could  do  this  the  prisoner  was  appre- 
hended ;  the  offence  was  held  to  be  complete  by  the  first  taking.  E,.  v. 
Peat,  2  East,  P.  C.  557  ;  see  also  R.  v.  Wright,  2  Russ.  Cri.  128,  5th 
ed.,  and  9  C.  &  P.  554  (n),  38  E.  C.  L. ;  and  R.  v.  Phetheon,  9  C.  & 
P.  552,  38  E.  C.  L.     See  R.  v.  Trebilcock,  infra,  p.  674. 

Proof  of  the  taking — what  manual  taking  is  required.  In  order 
to  constitute  the  offence  of  larceny,  there  must  be  an  a(!tual  taking 
possession  by  the  thief,  and  this  is  what  is  meant  by  saying  that  every 
larceny  includes  a  trespass,  though,  as  we  shall  see  presently,  the  tres- 
pass is  sometimes  constructive  only.  Thus,  A.  owing  money  to  the 
prosecutor,  the  prisoner  said  he  could  settle  the  debt  on  A.'s  behalf, 
and  taking  a  receipt  from  his  pocket  put  it  on  the  table,  and  then 
took  out  some  silver  in  his  hand.  The  prosecutor  wrote  a  receipt  for 
the  sum  mentioned  on  the  stamped  paper,  and  the  prisoner  took  it  up 
and  went  out  of  the  room.  On  being  asked  for  the  money  he  said, 
"  It  is  all  right ; "  but  never  paid  it.  It  was  held,  that  this  was  not  a 
larceny,  as  the  prosecutor  never  had  such  a  possession  as  would  enable 
him  to  maintain  trespass.  R.  v.  Smith,  2  Den.  C  C.  449  ;  21  L.  J., 
M.  C.  111.  So  where  the  prisoner  assigned  his  goods  to  trustees  for 
the  benefit  of  his  creditors,  but  before  the  trustees  had  taken  possession 
he  removed  the  goods  intending  to  deprive  his  creditors  of  them,  it 
was  held  that  he  was  not  guilty  of  larceny.  R.  v.  Pratt,  1  Dears.  C 
C.  360;  R.  V.  Smith,  2  Den.  C.  C.  R.  449;  31  L.  J.,  M.  C.  111. 
The  change  of  possession  need  not  be  by  the  very  hand  of  the  party 
accused.  For  if  he  fraudulently  procure  another,  who  is  himself  inno- 
cent of  any  felonious  intent,  to  take  the  goods  for  him,  it  will  be  the 
same  as  if  he  had  taken  them  himself;  as  if  one  procure  an  infant, 
within  the  age  of  discretion,  to  steal  the  goods  for  him.  2  East,  P. 
C.  555  ;  1  Russ.  on  Cri.  160,  5th  ed.  See  also  R.  v.  Williams,  1  C. 
&  K.  195,  47  E.  C.  L.^ 

The  least  removing  of  the  thing  taken  from  the  place  where  it  was 
*fi  ^01  *before  is  sufficient ;  indeed  the  words  "  take  and  carry  away,'' 
-I  ordinarily  used  in  an  indictment  for  larceny,  seem  to  mean  no 
more  than  the  word  "  take  "  alone  ;  thus  a  guest,  who  had  taken  the 
sheets  from  his  bed  with  an  intent  to  steal  them,  and  carried  them  into 
the  hall,  where  he  was  apprehended,  was  adjudged  guilty  of  larceny.^ 
Hawk.  P.  C.  b.  1,  c.  35,  s.  25 ;  3  Inst.  108  ;  2  East,  P.  C.  555 ;  1 
Leach,  323  ;  see  also  R.  v.  Sam  ways,  1  Dears.  C.  C.  R.  371.  So  where 
a  person  takes  a  horse  in  a  close,  with  intent  to  steal  him,  and  is  appre- 
hended before  he  can  get  him  out  of  the  close,  3  Inst.  109 ;  see  further 

^  But  evidence  that  cotton  was  brought  to  defendant's  house,  and  that  he  took  it  to 
market  and  sold  it,  will  not  support  an  indictment  for  larceny,  without  testimony  that 
he  had  a  share  in  the  first  taking.     Hill  v.  State,  78  Ala.  1. 

"  Case  of  Scott  et  al.,  5  Eog.  Kec.  169.  If  the  goods  are  moved  and  the  thief  has 
possession  for  only  an  instant  it  is  sufficient.  State  v.  Jackson,  65  N.  C.  305.  Where 
pocket  is  torn  and  book  falls  out,  there  is  a  sufficient  caption  and  asportation.  Com- 
monwealth V.  Luchis,  99  Mass.  431.  The  mere  upsetting  of  a  barrel  of  turpentine, 
although  done  with  felonious  intent,  is  not  such  an  asportation  as  will  constitute  lar- 
ceny.   State  V.  Jones,  65  N.  C.  395.    S.    Williams  v.  State,  63  Miss.  58. 


LARCENY.  819 

as  to  cattle,  R.  v.  Williams,  1  Moo.  C.  C.  107,  and  see  ante,  p.  389. 
The  prisoner  got  into  a  wagon,  and  taking  a  parcel  of  goods  which  lay 
in  the  forepart,  had  removed  it  to  near  the  tail  of  the  wagon,  when  he 
was  apprehended.  The  twelve  Judges  were  unanimously  of  opinion, 
that  as  the  prisoner  had  reuKjved  the  property  from  the  spot  where  it 
was  originally  placed,  with  an  intent  to  steal,  it  was  a  sufficient  taking 
and  carrying  awaij  to  constitute  the  offence.'  R.  v.  Costlet,  1 
Leach,  230  ;  2  East,  P.  C.  556.  But  where  the  prisoner  had  set  up  a 
parcel  containing  linen,  which  was  lying  lengthways  in  a  wagon,  on 
one  end,  for  tiie  greater  convenience  of  taking  the  linen  out,  and  cut 
the  wrapper  all  tlie  way  down  for  that  purpose,  but  was  apprehended 
before  he  had  taken  anything,  all  the  judges  agreed  that  this  was  no 
larceny,  although  the  intention  to  steal  was  manifest.  For  a  carrying 
away,  in  order  to  constitute  felony,  must  be  a  removal  of  the  goods 
from  the  place  where  they  were,  and  the  felon  must,  for  the  instant 
at  least,  have  the  entire  and  absolute  possession  of  them.  11.  v. 
Cherry,  2  East,  P.  C.  556 ;  1  Leach,  236  (n).  The  following  case, 
though  nearly  resembling  the  latter,  is  distinguished  by  the  circum- 
stance that  every  part  of  the  property  was  removed.  The  prisoner 
sitting  on  a  coach-box,  took  hold  of  the  upper  part  of  a  bag  which 
was  in  the  front  boot,  and  lifted  it  up  from  the  bottom  of  the  boot, 
on  which  it  rested.  He  handed  the  upper  part  of  the  bag  to  a  person 
who  stood  beside  the  wheel,  and  both  liolding  it  endeavored  to  pull 
it  out,  but  were  prevented  by  the  guard.  The  prisoner  being  found 
guilty,  the  judges,  on  a  case  reserved,  were  of  oi^inion  that  the  con- 
viction was  right,  thinking  that  there  was  a  complete  asporiavit  of 
the  bag.  R.  v.  Walsh,  1  Moo.  C  C  14.  The  prisoner  was  indicted 
for  robbing  the  prosecutrix  of  a  diamond  ear-ring.  It  appeared  that 
as  she  was  coming  out  of  the  opera-house  the  prisoner  snatched  at 
her  ear-ring,  and  tore  it  from  her  ear,  which  bled,  and  she  was  much 
hurt.  The  ear-ring  fell  into  her  hair,  where  it  was  found  on  her 
return  home.  On  a  case  reserved,  the  judges  were  of  opinion  that 
this  was  a  sufficient  taking  to  constitute  robbery  ;  it  being  in  the 
possession  of  the  prisoner  for  a  moment,  separated  from  the  owner's 
person,  was  sufficient,  though  he  could  not  retain  it,  but  probably 
lost  it  again  the  same  instant  that  it  was  taken.  R.  v.  Lapier,  2  East, 
P.  C.  557,  708  ;  1  Leach,  320.  Where  a  letter  carrier  did  not  deliver 
a  letter  sorted  to  him  for  delivery,  nor  return  it  in  the  pouch  with 
the  other  undelivered  letters  upon  his  return  to  the  office  as  it  was 
his  duty  to  do,  but  kept  it  in  his  pocket,  the  jury  found  that  he  had 
detained  the  letter  with  intent  to  steal  it,  and  it  was  held  that  there 
was  a  sufficient  taking  to  constitute  a  larceny.  R.  v.  Poynton,  L.  & 
C.  247 ;  32  L.  J.,  M.  C.  29.  Where  a  servant  animo  furandi  took 
his  master's  hay  from  his  stable,  and  put  it  into  his  master's  wagon, 
it  was  held  to  be  larceny.  R.  v.  Gruncell,  9  C.  &  P.  365,  38  E.  C.  L. 

»  State  1'.  Wilson,  1  Coxe,  441.    S. 

Asportation  is  a  removal  simply.  The  thing  taken  need  not  be  taken  out  of  the 
room.  State  v-  Iliggins,  88  Mo.  354.  In  Texas  proof  of  ast)ortation  is  not  essential 
to  support  an  indictment  for  larceny.     Doss  v.  State,  21  Tex.  App.  505. 


820  LARCENY. 

There  must,  however,  be  a  possession  by  the  party  cliarged,  however 
*fif^n  *temporary.^  The  j)risoner  stopped  the  proseeutor  as  he  was 
J  carrying  a  feather-bed  on  his  shoulders,  and  told  him  to  lay  it 
down,  or  he  would  shoot  him.  The  prosecutor  laid  the  bed  down ; 
but  before  the  prisoner  could  take  it  up  he  was  ap})rehendcd.  The 
judges  were  of  opinion  that  the  offence  was  not  completed.  11.  v.  Far- 
rel,"  2  East,  P.  C.  557. 

There  must  be  a  severance  of  the  goods  from  the  possession  of  the 
owner.  The  prisoner  took  a  purse  out  of  the  pocket  of  the  owner, 
but  the  purse  being  tied  to  a  bunch  of  keys,  and  the  keys  remaining 
in  his  pocket,  and  the  party  being  apprehended  while  they  remained 
in  his  pocket,  it  was  held  no  larceny,  on  the  ground  that  the  owner 
still  remained  in  possession  of  his  purse ;  and  that  there  was  no 
asportavit  R.  v.  Wilkinson,  1  Hale,  P.  C.  508.  So  where  goods  in 
a  shop  were  tied  to  a  string,  which  was  fastened  to  one  end  of  the 
bottom  of  the  counter,  and  the  prisoner  took  up  the  goods  and  carried 
them  towards  the  door  as  far  as  the  string  would  permit,  and  was 
then  stopped.  Eyre,  B.,  ruled  that  there  was  no  severance,  and  con- 
sequently no  felony.^  Anon.,  cited  in  R.  v.  Cherry,  2  East,  P.  C.  556; 
1  Leach,  321  (n). 

The  prisoner  was  indicted  for  stealing  five  thousand  cubic  feet  of 
gas.  The  gas  company  had  contracted  to  supply  him  with  gas  to  be 
paid  for  by  meter.  The  gas  was  received  from  the  company's  main 
into  an  entrance  pipe  belonging  to  the  prisoner,  and  passed  through 
the  meter  which  the  prisoner  had  hired  of  the  company  into  another 
pipe,  the  property  of  the  prisoner,  called  the  exit  pipe,  which  fed  the 
burners.  The  prisoner  fraudulently,  by  fixing  a  pipe  connecting  the 
entrance  and  exit  pipe,  made  a  passage  through  which  the  gas  rose 
to  the  burners  without  passing  through  the  meter,  which  conse- 
quently did  not  show  all  the  gas  consumed.  The  jury  found  that  the 
prisoner  had  not  by  contract  any  interest  in  or  control  over  the  gas 
until  it  passed  the  meter.  It  was  held,  that  the  prisoner,  by  open- 
ing the  stop-cock  of  the  connecting  pipe,  and  letting  the  gas  from 
out  of  the  entrance-pipe  into  it,  sufficiently  secured  a  jjortion  of  the 
gas  to  constitute  an  asportavit,  and  that  he  Avas  guilty  of  larceny 
of  the  gas.  R.  v.  White,  1  Dears,  C.  C.  R.  203  ;  22  L.  J.,  M.  C. 
123.  The  workmen  of  a  colliery  were  allowed  to  take  water  from 
the  taps  of  a  pipe  through  which  water  was  supplied  on  payment  of 
a  fixed  price ;  it  was  held  that  the  water  thus  stored  could  be  the 
subject  of  larceny  at  common  law,  and  that  any  one  taking  it  un- 
lawfully might  be  convicted  of  larceny.  Ferens  v.  O'Brien,  11  Q.  B  . 
D.  21 ;  52  L.  J.,  M.  C.  70. 

Proof  of  taking — possession  obtained  by  mistake.  The  proof 
that  the  goods  were  taken  with  a  felonious  intent  may  be  rebutted,  by 
showing  that  the  party  charged  with  the  larceny  took  them  by  mis- 
take. Thus  if  the  sheep  of  A.  strayed  from  his  flock  into  that  of  B., 
and  the  latter  by  mistake  drives  them  with  his  own  flock,  or  shears 

1  Kemp  V.  State,  13  Hump.  39.    S.        *  PhiUips'  Case,  4  Kog.  Rec.  117     S. 


LARCENY.  821 

them,  that  is  not  felony ;  but  if  he  knows  the  sheep  to  be  another's, 
and  marks  them  with  his  own  mark,  it  is  said  that  would  be  evidence 
of  a  felony.  1  Hale,  P.  C  507.  Sed  qu.  And  where  the  prisoner 
by  mistake  drove  away  with  his  flock  of  sheep  one  of  the  prosecutor's 
lambs,  and  afterwards  finding  out  that  he  had  the  lamb,  imme- 
diately sold  it  as  his  own  :  it  was  held,  that  as  the  original  taking 
was  not  rightful,  but  was  an  act  of  trespass,  the  subsequent  appro- 
priation was  larceny.  R.  v.  Riley,  1  Dears.  C.  C.  R.  149  ;  22  L.  J., 
*M.  C.  48.  So  if  he  appears  desirous  of  concealing  the  prop-  ^H.p^•9 
erty,  or  of  preventing  the  inspection  of  it  by  the  owner,  or  by  ^ 
any  other  who  might  make  the  discovery,  or  if,  being  asked,  he  deny 
the  having  them,  although  the  knowledge  be  proved ;  these  likewise 
are  circumstances  tending  to  show  the  felonious  intent.  2  East,  P.  C. 
661. 

But  there  is  a  distinction  between  things  taken  by  mistake,  and 
things  delivered  by  mistake.  In  the  case  of  tilings  delivered  by  mktake 
one  important  circumstance  to  be  considered  is  whether  at  the  mo- 
ment of  delivery  the  prisoner  had  an  animus  furandi  or  not.  If  he 
had  previously  intended  to  procure  the  delivery  to  himself,  then  the 
case  would  fall  under  the  class  to  be  presently  considered,  where  the 
question  is  whether  the  possession  only  is  obtained  by  the  fraud,  or 
whether  the  property  has  passed  :  if  the  property  has  passed,  whether 
in  consequence  of  the  fraud  or  not,  no  subsequent  appropriation 
of  the  goods  will  amount  to  larceny,  so  long  as  the  lawful  possession 
continues.  R.  v.  Mucklow,  1  Moo.  C.  C.  1 60  ;  R.  v.  Davis,  25  L.  J., 
M.  C.  91.  But  there  is  another  class  of  cases,  viz.,  where  the  pris- 
oner had  not  previously  intended  to  procure  the  delivery,  and  the 
prosecutor  by  some  mistake  delivers  the  goods  to  the  prisoner,  who, 
at  the  moment  of  delivery,  has  an  animus  furandi ;  in  that  case  it 
has  been  held  that  the  property  in  goods  has  not  passed  to  the  pris- 
oner, but  still  remains  in  the  prosecutor,  and  the  prisoner  receiving 
them  animo  furandi  is  guilty  of  larceny.  In  R.  v.  Middleton,  L.  R.  2 
C.  C.  38  ;  42  L.  J.,  M.  C.  73,  the  prisoner  was  a  depositor  in  a  post- 
office  savings  bank  to  the  amount  of  eleven  shillings.  He  gave  notice 
to  withdraw,  and  a  warrant  for  the  amount  was  duly  sent  to  the 
prisoner,  and  a  letter  of  advice  to  the  post-office  to  pay  the  amount 
to  the  prisoner.  When  the  prisoner  delivered  his  warrant  to  the 
clerk  at  the  post-office,  the  clerk  by  mistake  referred  to  another 
letter  of  advice  for  8^.  16.9.  10c/.,  and  ])laced  that  amount  upon  the 
counter.  The  clerk  entered  the  amount  paid  in  the  prisoner's 
deposit  book,  and  stamped  it,  and  the  prisoner  took  up  the  money 
and  went  away.  The  jury  found  that  the  prisoner  had  the  animus 
furandi  at  the  moment  of  taking  the  money  from  the  counter,  and 
that  he  knew  the  money  to  be  the  money  of  the  Post- Master  General 
when  he  took  it  up.  Seven  of  the  judges  out  of  fifteen  considered 
that  the  test  of  larceny  in  this  case  was  whether  the  property  had  in 
fact  passed  or  not,  and  not  whether  it  was  the  intention  of  the  pros- 
ecutor to  pass  it.  If,  they  said,  a  man  obtains  a  sale  and  delivery  to 
himself  by  fraud,  the  property  passes  to  him,  and  he  cannot  commit 


822  LARCENY. 

larceny  of  it.  (The  vendor  may  have  a  right  to  rescind  the  contract 
when  the  fraud  is  discovered,  but  in  the  meantime  the  property  has 
passed.)  But  if  things  are  delivered  by  mistake  no  property  passes, 
and  larceny  may  be  committed  by  the  person  receiving  such  property. 
(If  a  merchant  sells  six  sacks  of  beans,  and  by  mistake  delivered  six 
sacks  of  coifee,  larceny  of  the  coffee  may  be  committed.)  They  held 
that,  as  a  matter  of  fact,  a  mistake  had  been  committed,  and  as  a 
matter  of  law  that  no  property  passed,  and  the  prisoner  could  com- 
mit larceny  of  the  proj^erty  so  delivered  to  him  by  mistake.  Four 
of  the  judges  regarded  the  case  from  an  entirely  different  view.  They 
thought  that  larceny  was  a  crime  of  a  peculiarly  grave  character,  and 
that  what  gave  it  that  grave  character  was  that  the  act  was  done 
invito  domino.  By  intending  the  property  to  pass,  and  by  delivering 
it  with  that  intention,  a  prosecutor  by  his  own  act  places  the  prisoner 
*fi'"'^1  *^^  ^  position  different  from  that  in  which  the  law  supposes 
J  him  to  be  when  ho  does  an  act  invito  domino.  If  the  prisoner 
by  his  own  fraud  has  induced  the  prosecutor  to  part  with  the  posses- 
sion of  property,  that  is  another  matter ;  but  where  the  prisoner  is 
acting  honestly,  and  the  prosecutor  by  his  own  act  alone  puts  the 
goods  in  the  way  of  the  prisoner,  then,  Avhatever  else  he  may  be  guilty 
of,  he  is  not  guilty  of  the  very  grave  offence  of  larceny  They  held 
that  as  a  matter  of  fact  the  prosecutor  intended  to  pass  the  property 
to  the  prisoner,  and  delivered  it  to  him  with  that  intention,  and  there- 
fore as  a  matter  of  law  he  could  not  commit  larceny  of  it.  Tlie  fact 
of  the  intention  of  the  prosecutor  having  failed,  and  the  property  not 
having  passed  in  laAV,  was  immaterial.  One  learned  judge  thought 
as  a  matter  of  fact  that  even  the  possession  had  never  been  parted 
with,  and  three  learned  judges  decided  the  case  upon  an  entirely  dis- 
tinct point.  See  post,  p.  662.  The  result  is  that  the  question  is 
hardly  yet  decided  whether,  there  being  no  fraud  up  to  the  moment  of 
delivery,  larceny  can  be  committed  with  respect  to  goods  delivered  by 
the  prosecutor  to  the  prisoner  under  a  mistake  as  to  the  identity  of  the 
goods  delivered  or  the  identity  of  the  prisoner. 

In  the  course  of  the  judgment  of  the  majority,  it  is  said  :  "  We 
admit  that  the  case  is  undistinguishable  from  the  one  supposed  in  the 
argument  of  a  person  handing  to  a  cabman  a  sovereign  by  mistake  for  a 
shilling  ;  but  after  carefully  weighing  the  opinions  to  the  contrary  we 
are  decidedly  of  opinion  tluit  the  property  in  the  sovereign  would  not 
vest  in  the  cabman,  and  that  the  question  Avhether  the  cabman  Avas 
guilty  of  larceny  or  not  would  depend  upon  this,  Avhether  at  the  time 
he  took  the  sovereign  he  Avas  aAA^are  of  the  mistake  and  had  then  the 
guilty  intent,  the  animus  furandi." 

In  a  case  of  R.  v.  Jacobs,  reported  in  12  Cox,  C.  C.  151,  Mr.  Ser- 
jeant Cox  seems  to  have  pre\nously  ruled  the  contrary,  Avhere  a  pur- 
chaser gave  by  mistake  a  half-sovereign  for  a  sixpence. 

A  somewhat  similar  case  to  the  abo\^e  is  that  of  R.  v.  Bramley, 
L.  &  C.  21,  post,  p.  659.  In  that  case  the  prosecutor's  clerk,  acting 
Avith  full  authority,  allowed  the  prisoner  to  make  off  AA'ith  a  cart-load 
of  coal  by  a  mistake,  occasioned,  no  doubt,  by  the  fraud  of  the  prisoner, 


LARCENY.  823 

in  covering  the  coal  with  slack,  but  such  a  mistake  as  prevented  the 
property  in  the  coal  from  passing,  and  the  prisoner  was  held  rightly 
convicted  of  larceny. 

Proof  of  the  taking — possession  obtained  by  fraud  at  the  time 
of  taking — property  not  parted  with.  It  is  clear  that  if  the  pos- 
session of  goods  be  obtained  by  fraud,  this  is  a  taking  possession  of 
the  goods  so  as  to  constitute  larceny  unless  the  property  be  also  parted 
with,  in  which  case  there  is  no  larceny.  See  infra,  p.  655.  Assuming, 
therefore,  that  the  prosecutor  has  no  intention  to,  and  does  not,  in  fact, 
part  with,  his  property,  the  cases  of  possession  obtained  by  fraud  turn 
upon  the  intention  of  the  prisoner  at  the  time  that  he  obtained  posses- 
sion. Formerly,  if  his  intention  was  originally  fraudulent,  then  it 
was  larceny ;  if  it  was  originally  innocent,  then  he  was  merely  bailee, 
and  a  subsequent  fraudulent  appropriation  was  not  necessarily  larceny.^ 
Now,  however,  inasmuch  as  every  fraudulent  appropriation  by  a 
bailee  is,  in  consequence  of  the  provisions  of  the  24  &  25  Vict.  c. 
100,  s.  3,  supra,  p.  641,  a  larceny,  and  the  prisoner  in  this  case 
would  be,  at  least,  a  bailee,  the  distinction  is  of  less  importance  ;  but 
it  is  not  desirable  to  lose  sight  entirely  of  the  decisions  on  the  point, 
*fl^41  **'^®  principal  of  which  are  here  given.  Thus,  where  the  pris- 
^  oner  hired  a  mare  for  a  day  to  go  to  L.,  and  said  he  should  re- 
turn the  same  evening,  and  gave  a  false  reference.  In  the  afternoon 
of  the  same  day  he  sold  the  mare  in  Smithfield  ;  this  was  held  to  be 
larceny.  R.  v.  Pear,  2  East,  P.  C.  685;  Lea.  212.  A  postboy 
applied  to  the  prosecutor,  a  livery  -stable  keeper,  for  a  horse,  in  the 
name  of  Mr.  Ely,  saying  that  there  was  a  chaise  going  to  Barnet,  and 
that  Mr.  Ely  wanted  a  horse  for  his  servant  to  accompany  the  chaise, 
and  return  with  it.  The  horse  was  delivered  by  the  prosecutor's  ser- 
vant to  the  prisoner,  who  mounted  him,  and  on  leaving  the  yard,  said 
he  was  going  no  further  than  Barnet.  He  only  proceeded  a  short  way 
on  the  road  to  Barnet,  and  on  the  same  day  sold  the  horse  in  Good- 
man's fields  for  a  guinea  and  a  half,  including  saddle  and  bridle.  The 
court  observed  that  the  judges,  in  R.  v.  Pear,  had  determined,  that  if 
a  person,  at  the  time  he  obtained  another's  property,  meant  to  convert 

^  When  a  party  fraudulently  and  with  intent  to  steal,  obtains  possession  of  a  chattel 
with  the  consent  and  by  the  delivery  of  the  owner,  under  pretence  of  borrowing,  and 
converts  the  chattel  to  his  own  use,  lie  is  guilty  of  larceny.  Starker  v.  Commonwealth, 
7  Leigh,  752  ;  White  v.  State,  11  Tex.  769.  When  one  obtains  possession  of  goods  by 
false  representation,  intending  to  convert  them  to  his  own  use,  and  afterwards  does 
convert  them,  entirely  or  partially,  the  owner  not  having  parted  with  the  right  of 
property,  it  is  larceny.  State  v.  Lindenthall,  5  Eich.  237  ;  Commonwealth  v.  Wilde, 
5  Gray,  83.  When  a  bank  bill  is  delivered  to  a  party  to  procure  change,  and  he 
appropriates  it,  it  is  larceny ;  and  it  is  no  defence  that  the  owner  of  the  bill  owed 
liim  a  certain  sum,  wliich  he  intended  to  pay  him  out  of  the  proceeds  of  that  particu- 
lar bill.  Farrell  v.  People,  16  111.  506.  The  prisoner  asked  a  girl  to  lend  him  a 
small  amount  of  money ;  she  thereupon  handed  him  a  larger  amount  to  count  in  her 
presence ;  he  refused  to  return  her  any  and  Hed  with  the  whole ;  such  a  conversion 
animo  furandi  would  be  larceny.  Commonwealth  v.  O'Malley,  97  Mass.  584.  The 
fact  that  one  who  borrows  a  horse  with  intent  to  steal  it,  afterwards  changes  his  mind 
and  returns  it,  does  not  purge  the  offence  of  larceny.     State  ?'.  Scott,  64  N.  C.  586.    S. 

The  fraudulent  conversion  of  the  proceeds  of  a  loan  is  not  larceny.  People  v.  Cru- 
ger,  4  N.  Y.  Crlm.  K«p.  452. 


824  LARCENY. 

it  to  his  own  use,  it  was  felony :  that  there  was  a  distinction,  how- 
ever, to  be  observed  in  this  case  ;  for  if  they  thought  that  the  prisoner, 
at  the  time  of  hiring  the  horse  for  the  purpose  of  going  to  Barnet, 
really  intended  to  go  there,  but  finding  himself  in  possession  of  the 
horse,  afterwards  determined  to  convert  it  to  his  own  use,  instead  of 
proceeding  to  the  place,  it  would  not  amount  to  a  felonious  taking. 
R.  V.  Charlwood,  2  East,  P.  C.  689 ;  1  Leach,  409.  Major  Semple's 
case  was  also  decided  upon  the  point  of  the  prisoner's  intention.  Under 
the  name  of  Major  Harrold,  he  had  been  in  the  habit  of  hiring  car- 
riages from  the  prosecutor,  a  coachmaker,  and  on  the  1st  of  Sept.,  1786, 
he  hired  the  chaise  in  question,  saying,  he  should  want  it  for  three  weeks 
or  a  month,  as  he  was  going  a  tour  round  the  north.  It  was  agreed, 
that  he  should  pay  at  the  rate  of  5s.  a  day  during  that  time,  and  a 
price  of  fifty  guineas  was  talked  about,  in  case  he  should  purchase  it 
on  his  return  to  London,  which  was  suggested  by  the  prisoner,  but  no 
agreement  took  place  as  to  the  purchase.  A  few  days  afterwards  the 
prisoner  took  the  chaise  with  his  own  horses  from  London  to  Ux- 
bridge,  where  he  ordered  a  pair  of  horses,  went  to  Bulstrode,  returned 
to  Uxbridge,  and  got  fresh  horse*  Where  he  afterwards  went  did 
not  appear.  He  was  apprehended  a  year  afterwards  on  another 
charge.  Being  indicted  for  stealing  the  chaise,  it  was  argued  for  him, 
that  he  had  obtained  the  chaise  under  a  contract  which  was  not  proved 
to  be  broken,  and  that  this  distinguished  it  from  R.  v.  Pear,  supra, 
and  R.  v.  Aickles,  post ;  that  the  chaise  was  hired  generally  and  not 
to  go  to  any  particular  place ;  that  he  had  therefore  a  legal  possession, 
and  that  the  act  was  a  tortious  conversion,  and  not  a  felony.  It  was 
also  argued,  that  there  was  no  evidence  of  a  tortious  conversion  ;  for 
non  constat,  that  the  prisoner  had  disposed  of  the  chaise.  The  court, 
however,  said,  that  it  was  now  settled,  that  the  question  of  intention  was 
for  the  jury,  and  if  they  were  satisfied  that  the  original  taking  of  the 
chaise  was  with  a  felonious  intent,  and  the  hiring  a  mere  pretence  to 
give  eifect  to  that  design,  without  intention  to  restore  or  pay  for  it, 
it  would  fall  precisely  within  R.  v.  Pear,  and  the  other  decisions,  and 
the  taking  would  amount  to  felony.  R.  v.  Semple,  2  East,  P.  C.  691 ; 
1  Leach,  420. 

The  prisoner,  J.  H.  Aickles,  was  indicted  for  stealing  a  bill  of  ex- 
change, the  property  of  S.  Edwards.  The  prosecutor  wanting  the 
bill  discounted,  the  prisoner,  who  was  a  stranger  to  him,  called  at  his 
lodgings  and  left  his  address,  in  consequence  of  which,  Edwards  called 
on  him,  and  the  prisoner  informed  him  that  he  was  in  the  discounting 
*fi'^1  *line.  Three  weeks  afterwards  the  prosecutor  sent  his  clerk  to 
-■  the  prisoner,  to  know  whether  he  could  discount  the  bill  in 
question.  The  prisoner  went  with  the  clerk  to  the  acceptor's  house, 
where  he  agreed  with  the  prosecutor  to  discount  the  bill  on  certain 
terms.  After  some  conversation  the  prisoner  said  that  "  if  Edwards 
would  go  with  him  to  Pulteney  Street,  he  should  have  the  cash." 
Edwards  replied,  that  his  clerk  should  attend  him,  and  pay  him  the 
25s.  and  the  discount  on  receiving  the  money.  On  his  departure,  Ed- 
wards whispered  to  his  clerk  not  to  leave  the  prisoner  without  receiv- 


LARCENY.  825 

ing  the  money,  and  not  to  lose  sight  of  him.  The  clerk  went  with  the 
prisoner  to  his  lodgings,  in  Pulteney  Street,  where  the  prisoner  showed 
him  into  a  room,  and  desired  him  to  wait,  saying  he  should  be  back 
again  in  a  quarter  of  an  liour.  The  clerk,  however,  followed  him  down 
Pulteney  Street,  but,  in  turning  a  corner,  missed  him.  The  prosecutor 
and  his  clerk  waited  at  the  prisoner's  lodgings  three  days  and  nights 
in  vain.  Being  apprehended  at  another  place,  he  expressed  his  sorrow, 
and  promised  to  return  the  bill.  The  bill  was  seen  in  the  hands  of  a 
person  who  received  a  subpoena  duces  tecum,  but  he  did  not  appear,  and 
it  was  not  produced.  It  was  objected,  1st,  that  the  bill  ought  to  be 
produced ;  and,  2ndly,  that  the  facts,  if  proved,  did  not  amount  to 
felony.  It  was  left  to  the  jury  to  consider  whether  the  prisoner  had  a 
preconcerted  design  to  get  the  bill  into  his  possession,  with  intent  to 
steal  it ;  and,  next,  whether  the  prosecutor  intended  to  part  witli  the 
bill  to  the  prisoner,  without  having  the  money  first  paid.  As  to  this 
point,  see  infra.  Upon  the  first  point  the  jury  found  in  the  affirma- 
tive, and  on  the  second,  in  the  negative,  and  they  found  the  prisoner 
guilty.  Upon  a  reference  to  the  judges,  they  held  the  conviction  to 
be  proper  as  against  both  objections.  R.  v.  Aickles,  2  East,  P.  C  675; 
1  Leach,  294.  As  to  the  production  of  a  chattel,  see  R.  v.  Francis, 
ante,  p.  2. 

The  following  observations  are  made  by  Mr.  East  on  this  case  : — 
"  From  the  whole  transaction,  it  appeared  that  Ed^^'ards  never  gave 
credit  to  the  prisoner.  It  is  true  that  he  put  the  bill  into  his  hands, 
after  they  had  agreed  upon  the  terms  upon  wliich  it  was  to  be  dis- 
counted, that  by  showing  it  to  the  acceptor  he  might  satisfy  him- 
self that  it  was  a  genuine  acceptance.  But  besides,  tliat  this  was 
an  equivocal  act  of  delivery  in  itself,  it  seems  sufficiently  explained 
by  the  subsequent  acts  ;  for  Edwards,  or  his  clerk,  by  his  direction 
continued  with  the  prisoner  until  he  ran  away,  for  the  very  reason, 
because  they  would  not  trust  him  with  the  bill."     2  East,  P.  C.  677. 

Proof  of  the  taking — possession  obtained  by  fraud — property 
as  well  as  possession  parted  with.  In  the  preceding  lieading  the 
cases  where  the  prosecutor  had  no  intention  to  and  did  not  in  fact  part 
with  the  property  were  considered  with  respect  to  the  intention  of  the 
prisoner  ;  but  sometimes,  though  there  is  no  doubt  of  the  intention  of 
the  prisoner  to  steal,  yet  the  intention  of  the  prosecutor  to  part  with 
the  property,  or  the  fact  of  his  having  effectually  done  so,  is  the  ques- 
tion of  dispute.  It  must  be  borne  in  mind  that  if  the  owner  of  the 
goods  part  with  the  property  as  well  as  the  possession,  the  offence  is 
not  larceny,  but  the  decisions  u])on  this  point  are  in  some  cases  scarcely 
to  be  reconciled.  In  some  of  the  earlier  cases  especially,  the  distinc- 
tion between  what  was  the  intention  of  the  prisoner  and  what  was 
the  intention  of  the  prosecutor  docs  not  appear  to  have  been  clearly 
maintained.  However  fraudulent  the  prisoner's  intention  may  have 
*been  from  the  first,  if  the  owner  deliberately  intends  to  part  r^nno 
with  his  property,  and  completely  carries  out  that  intention,  L 
there  can  be  no  larceny.     If  he  intends  to  part  with  the  property  in 


826  LARCENY. 

the  goods  but  it  docs  not  pass  in  law,  his  intention  to  pass  it  is  imma- 
terial, and  the  prisoner  can  commit  larceny  of  tlie  property  wliich  still 
remains  in  the  prosecutor.  R.  th  Middleton,  ante,  p.  652.  The  pris- 
oner was  indicted  for  stealing  two  silver  cream-ewers  from  the  prose- 
cutor, a  silversmith.  He  was  formerly  servant  to  a  gentleman,  who 
dealt  with  the  prosecutor,  and,  some  time  after  he  had  left  him,  he 
called  at  the  prosecutor's  shop,  and  said  that  his  master  (meaning  the 
gentleman  whose  service  he  had  Icl't)  wanted  some  silver  cream-ewers, 
and  desired  the  prosecutor  to  give  him  one,  and  to  put  it  down  to  his 
master's  account.  The  prosecutor  gave  him  two  ewers,  in  order  that 
his  master  might  select  the  one  he  liked  best.  The  prisoner  took  both, 
sold  them,  and  absconded.  At  the  trial  the  prosecutor  swore  that  he 
did  not  charge  the  master  (his  customer)  with  the  cream-ewers,  nor  did 
he  intend  to  charge  him  with  either  until  he  had  first  ascertained  which 
of  them  he  had  selected.  It  was  objected  for  the  prisoner,  tliat  this 
amounted  merely  to  obtaining  goods  under  false  pretences ;  but  Ba^dey, 
J.,  held,  that  as  the  prosecutor  intended  to  part  with  the  possession 
only,  and  not  with  the  right  of  property,  the  offence  was  larceny, 
but  that  if  he  had  sent  only  one  cream-ewer,  and  had  charged  the 
customer  with  it,  the  offence  would  have  been  otherwise.  R.  v. 
Davenport,  Newcastle  Spring  Assizes,  1826.  1  Archbold's  Peel's 
Acts,  5. 

The  following  cases  are  those  in  which  the  prosecutor  has  expected 
to  be  paid  for  the  goods  parted  with  at  the  time  of  delivery,  and  has 
therefore  not  completely  parted  with  his  property  in  them.  The  pris- 
oner havino;  bargained  for  some  oxen,  of  which  he  ao;reed  to  become 
the  purchaser,  went  to  the  place  where  they  were  in  the  care  of  a  boy, 
took  them  away,  and  drove  them  off.  By  the  custom  of  the  trade,  the 
oxen  ought  not  to  have  been  taken  away  till  the  purchase-money  was 
paid.  Garrow,  B.,  left  it  to  the  jury  to  say,  whether,  though  the 
beasts  had  been  delivered  to  the  prisoner  under  a  contract,  they 
thought  he  originally  got  possession  of  them  without  intending  to 
pay  for  them,  making  the  bargain  the  pretext  for  obtaining  tliem  for 
the  purpose  of  stealing  them.  The  jury  having  found  in  the  affirma- 
tive, the  judges,  in  a  case  reserved,  were  unanimously  of  opinion  that 
the  offence  amounted  to  felony.  R.  v.  Gilbert,  Gow,*N.  P.  C.  225  (w); 
1  Moody,  C.  C.  185.  In  this  case  it  would  appear  that  the  prosecutor 
did  not  consent  to  part  with  the  oxen  except  upon  the  terms  that  the 
money  for  them  should  be  paid  at  the  time ;  and  see  R.  v.  Aickles, 
supra.  The  prisoner  called  at  the  shop  of  the  prosecutor,  and  selected 
a  quantity  of  trinkets,  desiring  they  might  be  sent  the  next  day  to  the 
inn  where  he  lodged.  An  invoice  was  made  out  and  the  prosecutor 
next  day  carried  the  articles  to  the  inn.  He  was  prevailed  upon  by 
the  prisoner  to  leave  them  there,  under  a  promise  that  he  should  be 
paid  for  them  by  a  friend  that  evening.  The  prisoner  and  the  prose- 
cutor desired  they  might  be  taken  care  of  at  the  inn,  and  the  prose- 
cutor said  he  considered  the  goods  to  be  sold  if  he  got  his  cash,  but  not 
before.  Half  an  hour  afterwards  the  prisoner  returned,  and  took  the 
articles  away.     There  were  other  circumstances  showing  a  fraudulent 


LARCENY.  827 

intent,  and  the  judge  directed  the  jury,  that  if  they  were  satisfied  that 
the  prisoner  when  he  first  called  on  the  prosecutor  had  no  intention 
of  buying  and  paying  for  the  goods,  but  gave  the  order  for  the  purpose 
*of  getting  them  out  of  his  possession,  and  afterwards  clandes-  r^nnj 
tinely  removing  and  converting  them  to  his  own  use,  they  should  •- 
find  him  guilty,  which  they  did  ;  and  the  judges,  on  a  case  reserved, 
held  tlie  direction  and  conviction  right.  R.  v.  Campbell,  1  Moody,  C 
C.  179.  This  case  was  soon  afterwards  followed  by  another,  to  the 
same  effect.  The  prisoner  bargained  for  four  casks  of  butter,  to  be 
paid  for  on  delivery,  and  was  told  he  could  not  have  them  on  any 
other  terms.  The  prosecutor's  clerk  at  last  consented  that  the  pris- 
oner should  take  away  the  goods,  on  the  express  condition  that  they 
should  be  paid  for  at  the  door  of  his  house.  The  prisoner  never  took 
the  goods  to  his  house,  but  lodged  them  elsewhere.  The  prisoner  was 
indicted  for  stealing  the  goods.  The  jury  found  that  he  had  no  in- 
tention to  buy  the  goods,  but  to  get  them  by  fraud  from  the  owner. 
A  case  being  reserved,  the  judges  were  unanimously  of  opinion  that 
the  felony  was  complete,  and  the  conviction  good,  the  jury  having 
found  that  the  prisoner  never  meant  to  buy,  but  to  defraud  the  owner.* 
R.  V.  Piatt,  1  Moody,  C.  C.  250.  So  where  the  prisoner,  bargaining 
with  the  prosecutor  for  some  waistcoats,  agreed  to  pay  a  certain  price 
for  them,  but  upon  their  being  put  into  his  gig  drove  off  without 
paying  for  them  ;  and  the  jury  found  that  "  the  waistcoats  were  parted 
with  conditionally  that  the  money  was  to  be  jjaid  at  the  time,  and  that 
the  prisoner  took  them  with  a  felonious  intent ; "  it  was  held  to  be 
larceny.  R.  v.  Cohen,  2  Den.  C.  C.  R.  249.  See  also  R.  v.  Morgan, 
1  Dears.  C.  C.  R.  395  ;  R.  v.  Slowly,  12  Cox,  C.  C.  269  ;  R.  v.  Bram- 
ley,  L.  &  C.  21,  post,  p.  659. 

The  prisoner  went  into  a  shop,  and  asked  a  boy  to  give  him  change 
for  half-a-crown  ;  the  boy  gave  him  two  shillings  and  six  penny- 
worth of  copper.  The  prisoner  held  out  half-a-crown,  which  the  boy 
caught  hold  of  by  the  edge,  but  did  not  get  it.  The  prisoner  then 
ran  away.  Park,  J.,  held  this  to  be  a  larceny  of  the  2s.  and  the 
coppers ;  but  said,  if  the  prisoner  had  been  charged  only  Avith  steal- 
ing the  half-crown,  he  should  have  had  great  doubt.  R.  v.  Williams, 
6  C.  &  P.  390,  25  E.  C.  L. 

On  an  indictment  for  stealing  a  receipt,  it  appeared  that  a  landlord 
went  to  his  tenant  (who  had  removed  all  his  goods)  to  demand  his 
rent,  amounting  to  12/.  10s.,  taking  with  him  a  receipt,  ready  written 
and  signed,  the  tenant  gave  him  2L,  and  asked  to  look  at  the  receipt. 
On  its  being  handed  to  him  he  refused  to  return  it,  or  to  pay  the  re- 
mainder of  the  rent.  The  landlord,  at  the  time  he  gave  the  prisoner 
the  receipt,  thought  the  prisoner  was  going  to  pay  him  the  rent,  and 
would  not  have  parted  with  the  receipt  unless  he  had  been  paid  all 
the  rent ;  but  when  he  put  the  receipt  into  the  prisoner's  hands,  he 
never  expected  to  have  it  again,  and  did  not  want  it  again,  but  wanted 
his  rent  paid.     Coleridge,  J.,  held  that  it  was  a  larceny  of  the  receipt, 

^  Valentine's  Case,  4  Rog.  Eec.  33 ;  Bowen's  Case,  Id.  46  ;  Blunt  v.  Commonwealth, 

4  Leigh,  689.    S. 


828  LARCENY. 

and  that  the  fact  of  the  prisoner  paying  the  21.  made  no  difference.  R. 
V.  Rodway,  9  C.  &  P.  784,  38  E.  C.  L. 

Where  a  lady  gave  a  sovereign  to  the  prisoner  in  order  that  he  might 
obtain  for  her  a  railway  ticket,  and  he  ran  away  with  the  money,  and 
the  jury  found  that  the  prisoner  had  placed  himself  near  the  pay  place 
for  the  purpose  of  being  intrusted  with  money  to  get  tickets,  and  of 
converting  the  money  to  his  own  use,  it  was  held  that  he  was  rightly 
convicted  of  larceny.  R.  v.  Thompson,  L.  &  C.  225  ;  32  L.  J.,  M. 
C.  58. 

The  prisoner  went  with  another  man  into  a  shop  and  asked  for 
a  pennyworth  of  sweetmeats.  He  put  down  a  florin  which  the 
*r'"'ST  *shopkeeper  put  into  the  money -drawer.  She  then  placed  on 
-J  the  counter  a  shilling,  a  sixpence,  and  five  pence.  The  prisoner 
took  up  the  change.  The  other  man  said,  "  You  need  not  have 
changed,"  and  put  down  a  penny,  Avhich  the  prisoner  took  up.  The 
prisoner  then  put  down  a  sixpence  and  six  pennies,  and  asked  for  a 
shilling.  The  shopkeeper  put  a  shilling  on  the  counter,  wdien  the  pris- 
oner said,  "You  may  as  well  give  me  the  two-shilling  piece  and  take 
it  all."  The  shopkeeper  then  put  the  florin  she  had  received  from  the 
prisoner  upon  the  counter,  expecting  she  was  to  receive  two  shillings 
c>f  the  prisoner's  money  in  exchange  for  it.  The  prisoner  took  the 
florin,  and  the  shopkeeper  took  the  shilling,  the  sixpence,  and  the  six 
pennies,  and  was  in  the  act  of  putting  them  into  the  money-drawer 
when  she  discovered  the  fraud  ;  but  before  she  had  time  to  speak  the 
prisoner  left  the  shop.  The  shopkeeper  said  that  she  did  not  intend 
parting  with  the  florin  without  getting  full  change  for  it.  The  prisoner 
was  convicted  of  larceny,  and  the  Court  held,  confirming  the  convic- 
tion, that  the  transaction  was  not  complete,  and  that  the  property  in 
the  florin  had  not  passed  to  the  prisoner.  R.  v.  McKale,  37  L.  J.,  M. 
C.  97  ;  L.  R.,  1  C.  C.  R.  125.  See  also  R.  v.  Twist,  12  Cox,  C.  C. 
R.  509  ;  R.  V.  Hollis,  12  Q.  B.  D.  25. 

In  two  recent  cases  the  prisoner  was  charged  with  stealing  nineteen 
shillings.  In  both  the  prosecutor  gave  the  prisoner  a  sovereign, 
under  the  expectation  that  nineteen  shillings  change  was  to  be  given. 
In  the  first  case  the  chairman  of  Quarter  Sessions  amended  the  indict- 
ment to  one  for  stealing  a  sovereign,  and  directed  the  jury  that  if  they 
believed  that  the  prisoner  at  the  moment  of  obtaining  the  sovereign 
intended  by  a  trick  feloniously  to  deprive  the  prosecutor  of  the  sov- 
ereign they  were  to  find  a  verdict  of  guilty,  and  it  was  held  that  the 
direction  was  right.  R.  v.  Gumble,  42  L.  J.,  M.  C.  7  ;  L.  R.  2  C.  C. 
R.  1.  In  the  second  case  the  indictment  was  not  amended,  and  there- 
fore the  prisoner  could  not  be  convicted,  as  she  had  never  taken  nine- 
teen shillings  at  all,  but  the  majority  of  the  judges  thought  that  she 
might  have  been  convicted  on  an  indictment  for  stealing  one  sovereign 
if  the  issue  had  been  properly  left  to  the  jury.  R.  v.  Bird,  12  Cox,  C. 
C.  257,  C.  C.  R.;  42  L.  J.,  M.  C.  44. 

So  also  where  money  has  been  merely  deposited  by  the  prosecutor 
with  the  prisoner,  the  prisoner  may  commit  larceny  of  it.  Thus,  ob- 
taining money  or   goods  by  ring-dropping,  etc.,  has  been  held  to  be 


LARCENY.  829 

larceny.  The  prisoner,  with  some  accomplices,  being  in  company 
with  the  prosecutor,  pretended  to  find  a  vahiable  ring  wrapped  np  in 
a  paper,  appearing  to  be  a  jewelkn-'s  receipt  "  for  a  rich  brilliant 
diamond  ring."  They  oifered  to  share  the  value  of  it  with  the  prose- 
cutor, if  he  would  deposit  some  money  and  his  watch  as  a  security. 
The  prosecutor,  having  accordingly  laid  down  his  watch  and  money 
on  a  table,  was  beckoned  out  of  the  room  by  one  of  the  confederates, 
while  the  others  took  away  his  watch  and  money.  This  was  held  to 
amount  to  larceny.  R.  v.  Patch,  1  Leach,  238 ;  2  East,  P.  C.  678. 
So  where,  under  similar  circumstances,  the  prisoner  procured  from 
the  prosecutor  twenty  guineas,  promising  to  return  them  the  next 
morning,  and  leaving  the  false  jewel  with  him  :  this  was  also  held  to 
be  larceny.  P.  v.  INIoore,  1  Leach,  314 ;  2  East,  P.  C.  679.  To  the 
same  effect  is  P.  v.  Watson,  2  Leach,  640  ;  2  East,  P.  C.  680.  So 
where  the  prosecutor  was  induced,  by  a  preconcerted  scheme,  to  de- 
posit his  money  with  one  of  the  defendants,  as  a  deposit  upon  a  pre- 
tended bet,  and  the  stakeholder  afterwards,  upon  pretence  that  one  of 
*his  confederates  had  won  the  wager,  handed  over  the  money  r^nKQ 
to  him  ;  and  it  was  left  to  the  jury  to  say  whether,  at  the  time  L 
the  money  was  taken,  there  was  not  a  plan  that  it  should  be  kept, 
under  the  false  color  of  winning  the  bet,  and  the  jury  found  there  was : 
this  was  held  to  be  larceny.     R.  v.  Robson,  Puss.  &  R.  413. 

Where  the  prisoner  covered  some  coals  in  a  cart  with  slack,  and 
gave  it  to  be  weighed  as  slack,  and  after  it  was  weighed  paid  for  it  as 
slack  only,  and  converted  the  coal  so  obtained  to  his  own  use,  it  was 
held  that  this  was  a  larceny  of  the  coal,  for  the  prosecutor  had  not 
parted  and  never  intended  to  part  with  the  property  in  the  coal. 
R.  V.  Braraley,  L.  &  C.  21. 

In  all  of  the  above  cases  it  was  held  that  the  prosecutor  had  not  com- 
pletely parted  with  his  property  in  the  goods.  The  doctrine  is  clearly 
established  that,  if  the  owner  intends  to  part  with  the  property  in 
the  goods,  and,  in  pursuance  of  such  intention,  delivers  the  goods  to 
the  prisoner,  who  takes  them  away,  and  the  property  becomes  his,  this 
is  not  larceny,  even  though  the  prisoner  has  from  the  first  a  fraudu- 
lent intention.*  This  is  what  constitutes  the  offence  of  obtaining  by 
false  pretences ;  and  as  that  is  now  an  offence  as  easily  and  as  fully 
punishable  as  larceny,  there  is  no  reason  whatever  why  the  acknowl- 
edged principle  should  not  be  strictly  applied. 

The  following  are  instances  in  which  the  offence  has  been  held  not 
to  amount  to  larceny,  on  the  ground  that  the  property  in  the  goods 
has  passed  to  the  prisoner.  One  of  the  defendants,  in  the  presence  of 
the  prosecutor,  picked  up  a  purse  containing  a  watch,  a  chain,  and 
two  seals,  which  a  confederate  represented  to  be  gold,  and  worth  18^.; 
upon  which  the  prosecutor  purchased  the  share  of  the  party  who 
picked  up  the  purse  for  71.;  Coleridge,  J.,  held  that  this  was  not 

1  Lewer  v.  Commonwealth,  15  S.  &  E.  (Pa.)  93 ;  Mowrey  v.  Walsh,  8  Cow.  (N.  Y.) 
242.    S. 

Under  the  New  York  code  an  indictment  for  larceny  will  be  supported  by  evidence 
of  obtaining  goods  under  false  pretences.     People  v.  Dumar,  42  Hun,  (N.  Y.)  80. 


830  LAPvCENY. 

larceny.  R.  v.  AVJlson,  8  C.  &  P.  Ill,  34  E.  C.  L.  Compare  this 
case  with  R.  v.  Patch,  supra,  where  the  prisoner  had  only  deposited  his 
money.  The  prisoner  was  indicted  for  horse  stealing,  and  it  appeared 
in  evidence  that  he  met  the  prosecutor  at  a  fair  with  a  liorse,  which  the 
latter  had  brought  th(!re  for  sale.  The  prisoner,  being  known  to  him, 
proposed  to  become  the  purchaser.  On  a  view  of  the  horse,  the  prose- 
cutor told  the  prisoner  he  should  have  it  for  8/.,  and  calling  his  servant, 
ordered  him  to  deliver  it  to  the  prisoner,  wlio  immediately  mounted 
the  hoTse,  telling  the  prosecutor  that  he  woidd  return  immediately 
and  pay  him.  The  prosecutor  replied,  "  Very  well,"  and  the  prisoner 
rode  away,  and  never  returned.  Gould,  J.,  ordered  an  acquittal,  for 
here  was  a  complete  contract  of  sale  and  delivery ;  the  property  as 
well  as  possession  was  entirely  parted  with.  R.  v.  Harvey,  2  East, 
P.  C.  6G9  ;  1  Leach,  467.  In  this  case,  it  was  observed  by  the  judge, 
that  the  prosecutor's  only  remedy  was  by  action.  1  Leach,  467.  Had 
any  false  pretences  been  used,  the  prisoner  might  have  been  indicted 
under  the  30  Geo.  2,  c.  24. 

Paikes  Avas  indicted  for  stealing  a  piece  of  silk,  the  property  of 
Thomas  Wilson.  The  prisoner  called  at  Wilson's  warehouse,  and 
having  looked  at  several  pieces  of  silk,  selected  the  one  in  question. 
He  said  his  name  was  Jolin  Williams,  that  he  lived  at  No.  6,  Ara- 
bella-row, and  that  if  Wilson  would  send  it  that  evening,  he  would 
pay  him  for  it.  Wilson  accordingly  sent  his  shopman  with  it,  who, 
as  he  was  taking  the  goods,  met  the  prisoner.  The  latter  took  him 
into  a  room  at  No.  6,  Arabella-row,  examined  the  bill  of  parcels,  and 
gave  several  bills  drawn  by  Freeth  and  Co.,  at  Bradford,  on 
Taylor  and  Co.,  in  London.  The  bills  were  for  more  than  the  price 
*flrm  *^^  ^^^  goods.  The  servant  could  not  give  the  change,  but  the 
-^  prisoner  said  he  wanted  more  goods,  and  should  call  the  follow- 
ing day,  which  he  did  not  do.  Taylor  and  Co.  said  the  notes  were  good 
for  nothing,  and  that  they  had  no  correspondent  at  Bradford.  Before 
the  goods  were  sent  from  AVilson's  they  were  entered  in  a  memoran- 
dum-book, and  the  prisoner  was  made  debtor  for  them,  which  was 
the  practice  where  goods  were  not  paid  for  immediately.  It  was  left 
to  the  jury  to  consider  whether  there  was  from  the  beginning  a  pre- 
meditated plan  on  the  part  of  the  prisoner  to  obtain  the  goods  with- 
out paying  value  for  them,  and  whether  this  was  a  sale  by  Wilson, 
and  a  delivery  of  the  goods  with  intent  to  part  with  the  property,  he 
having  received  bad  bills  in  payment  through  the  medium  of  his 
servant.  The  jury  found  that  from  the  beginning  it  was  the  pris- 
oner's intention  to  defraud  Wilson,  and  that  it  was  not  Wilson's 
intention  to  give  him  credit ;  and  they  found  him  guilty.  But  the 
judges  were  of  opinion  that  the  conviction  was  wrong,  the  properly, 
as  well  as  the  possession,  having  been  parted  with,  upon  receiving 
that  which  was  accepted  as  payment  by  the  prosecutor's  servant, 
though  the  bills  afterwards  turned  out  to  be  of  no  value.  R.  v. 
Parkes,  2  East,  P.  C.  671 ;  2  Leach,  614.  See  R.  v.  Small,  jwst,  p. 
663. 

The  prisoner  was  a  servant  in  the  employment  of  grocers  who  were 


LARCENY.  831 

in  the  habit  of  purchasing  "  kitchen  stuff."  It  was  his  duty  to  receive 
and  weigh  it,  and  if  the  chief  clerk  was  in  the  counting-house,  to  give 
tiie  seller  a  ticket,  specifying  the  weight  and  price  of  the  article,  and 
the  name  of  the  seller,  which  ticket  was  signed  with  the  initials  of 
the  prisoner.  The  seller,  on  taking  the  ticket  to  the  chief  clerk,  re- 
ceived the  price  of  the  "  kitchen  stuff."  In  the  absence  of  the  chief 
clerk,  the  prisoner  had  himself  authority  to  pay  the  seller,  and  after- 
wards, on  producing  the  ticket  to  the  chief  clerk,  was  repaid.  The 
prisoner  had,  on  the  day  mentioned  in  the  indictment,  presented  a 
ticket  to  the  chief  clerk,  purporting  to  contain  all  the  usual  sj)ccifica- 
tions,  and  marked  with  the  prisoner's  initials,  and  demanded  the  sum 
of  2s.  3d.,  which  he  alleged  that  he  had  paid  for  "  kitchen  stuff."  He 
received  the  money,  and  appropriated  it  to  his  own  use ;  and  it  was 
afterwards  discovered  that  no  such  person  as  was  described  in  the 
ticket  had  ever  sold  any  such  article  to  the  prosecutors,  but  that  the 
ticket  was  fraudulently  made  out,  and  presented  by  the  prisoner. 
The  court  held  that  this  was  a  case  of  false  pretences,  and  that  an  in- 
dictment for  larceny  could  not  be  sustained,  "as  the  clerk  delivered 
the  money  to  the  prisoner  with  the  intent  of  parting  with  it  wholly 
to  him."     R.  V.  Barnes,  2  Den.  C.  C.  R.  59. 

A  case  of  frequent  occurrence  is  the  following.  The  prisoner  being 
the  prosecutor's  servant,  it  was  his  duty  to  receive  and  pay  moneys 
for  the  prosecutor,  and  make  entries  of  such  receipts  and  payments 
in  a  book  which  was  examined  by  the  prosecutor  from  time  to  time. 
On  one  occasion  the  prisoner  showed  a  balance  of  21.  in  his  favor, 
by  taking  credit  for  payments  falsely,  entered  in  his  book  as  having 
been  made  by  him,  when  in  fact  they  had  not  been  so  made,  and 
thereupon  was  paid  by  his  master  the  21.  as  a  balance  due  to  him. 
The  prisoner  having  been  convicted  of  larceny,  the  Court  of  Criminal 
Appeal  held  the  conviction  wrong,  but  several  judges  expressed  an 
opinion  that  an  indictment  for  obtaining  money  by  false  pretences 
might  have  been  sustained.  R.  v.  Green,  1  Dears.  C.  C.  323 ;  but  see 
R.  V.  Cooke,  inft'a. 

*It  was  the  duty  of  the  prisoner  to  ascertain  the  amount  of  r*p/^i 
certain  dock  dues  payable  by  the  prosecutors,  and  having  re-  L 
ceived  the  money  from  their  cash-keeper,  to  pay  the  dues  over  to  those 
who  were  entitled  to  them ;  he  falsely  represented  a  sum  of  3^.  10s.  4d. 
to  be  due,  whereas  in  truth  a  less  sum  was  then  due,  and  having  ob- 
tained the  larger  sum,  converted  the  difference  to  his  own  use;  it  was 
held  not  to  be  larceny,  but  an  obtaining  by  false  pretences.  R.  v. 
Thompson,  L.  &  C.  233  ;  32  L.  J.,  M.  C.  57.  It  is  said  that  the 
above  decision  went  entirely  upon  the  question  whether  there  was  a 
larceny  in  the  first  instance,  and  not  whether  the  subsequent  appro- 
priation was  larceny,  as  it  seems  it  was.  R.  v.  Cooke,  L.  R.  1  C.  C. 
R.  295  ;  40  L.  J.,  M.  C.  68.  See  this  case,  infra,  as  to  possession  ob- 
tained by  servants,  p.  668. 

Where  the  goods  have  been  purchased  by  a  third  person,  and  the 
prisoner  obtains  possession  of  them  in  that  person's  name,  by  false 
pretences,  as  the  owner  intends  to  part  with  his  property,  though  not 


832  LAECENY. 

to  the  prisoner,  it  has  been  held  not  to  amount  to  felony.  The  pris- 
oner was  indicted  for  stealing  a  hat,  in  one  count  laid  to  be  the  prop- 
erty of  Robert  Beer,  in  another  of  John  Paul.  The  prisoner  bought 
a  hat  of  Beer,  a  hat-maivcr,  at  Islington ;  but  was  told  he  could  not 
have  it  without  paying  for  it.  While  in  the  shop,  lie  saw  a  hat  which 
had  been  made  for  Paul,  and  saying  that  he  lived  next  door  to  him, 
asked  when  Paul  was  to  come  for  his  hat.  He  w^as  told  in  half  an 
hour  or  an  hour.  Having  left  the  shop,  he  met  a  boy,  asked  him  if  he 
knew  Beer,  saying,  that  Paul  had  sent  liim  to  Beer's  for  his  hat ;  but  that, 
as  he  owed  Beer  for  a  hat  himself,  which  he  had  not  the  money  to  pay, 
he  did  not  like  to  go.  He  asked  the  boy  (to  whom  he  promised  some- 
thing for  his  trouble)  to  carry  the  message  to  Beer's,  and  bring  Paul's 
hat  to  him  (the  prisoner).  He  also  told  the  boy  not  to  go  into  Beer's 
shop,  if  Paul,  whom  he  described,  should  be  there.  The  boy  went, 
and  delivered  the  message,  and  received  the  hat,  w^liich,  after  carrying 
part  of  the  way  by  the  prisoner's  desire,  he  delivered  to  him,  the  pris- 
oner saying  he  would  take  it  himself  to  Paul.  The  prisoner  was 
apprehended  with  the  hat  in  his  possession.  It  was  objected  for  him, 
that  this  Avas  not  larceny,  but  an  obtaining  goods  under  false  pretences. 
The  prisoner  being  found  guilty,  the  question  was  reserved  for  the 
opinion  of  the  judges,  who  decided  that  the  offence  did  not  amount 
to  a  felony,  the  owner  having  parted  with  his  property  in  the  hat. 
R.  V.  Adams,  2  Russ.  Cri.  146,  5th  ed.  See  also  R.  v.  Box,  9  C.  &  P. 
126,  38  E.  C.  L.  But  see  R.  v.  Kay,  infra,  tit.  "  Post-office."  And 
see  the  remarks  on  the  above  case  contained  in  the  judgment  of  seven 
of  the  judges  in  R.  v.  Middletcyi,  ante,  p.  652,  from  which  it  seems 
that  the  property  in  the  hat  had  never  passed  to  the  prisoner,  and  that 
the  offence  amounted  to  larceny. 

Tlie  prisoners,  Nicholson,  Jones,  and  Chappel,  were  indicted  for 
stealing  two  bank  post  bills  and  seven  guineas.  The  prisoner  Nich- 
olson introduced  himself  to  the  prosecutor,  at  the  apartments  of  the 
latter,  in  the  Charter  House,  under  the  pretence  of  inquiring  what 
the  rules  of  the  charity  were.  Discovering  that  the  prosecutor  had 
some  money,  he  desired  to  walk  with  him,  and  having  been  joined  by 
the  prisoner  Chappel,  they  went  to  a  public-house.  The  prisoner 
Jones  then  came  into  the  room,  and  said  that  he  had  come  from  the 
country  to  receive  1,400/.,  and  produced  a  quantity  of  notes.  Chappel 
said  to  him,  "  I  suppose  you  think  that  no  one  has  any  money  but 
*rfi9l  *you."  Jones  answered,  "  I'll  lay  10/.  that  neither  of  you 
"-I  can  show  40/.  in  two  hours."  They  then  all  went  out,  Nich- 
olson and  Chappel  said  that  they  should  go  to  the  Spotted  Horse,  and 
they  both  asked  the  prosecutor  if  he  could  show  40/.  He  answered 
he  believed  he  could.  Nicholson  accompanied  the  prosecutor  home, 
when  the  latter  took  out  of  his  desk  the  two  bank  post  bills  and  five 
guineas.  Nicholson  advised  him  to  take  a  guinea  or  two  more,  and 
he  accordingly  took  two  guineas  more.  They  then  went  to  the  Spot- 
ted Horse,  where  Jones  and  Chappel  were  in  a  back  room.  Jones  put 
down  a  10/.  note  for  each  who  could  show  40/.  The  prosecutor  showed 
his  40/.  by  laying  down  the  notes  and  guineas,  but  did  not  recollect 


LARCENY.  833 

whether  he  took  up  the  10?.  given  to  him.  Jones  then  wrote  four 
letters  in  chalk  upon  the  table,  and  going  to  the  end  of  the  room, 
turned  his  back,  and  said,  that  he  would  bet  them  a  guinea  apiece 
that  he  would  name  another  letter  that  should  be  made  and  a  basin 
put  over  it.  Another  letter  was  made  and  covered  with  a  basin. 
Jones  guessed  wrongly,  and  the  others  won  a  guinea  each.  Chappel 
and  Nicholson  then  said,  "  We  may  as  well  have  some  of  Jones's 
money,  for  he  is  sure  to  lose,  and  we  may  as  well  make  it  more,  for 
we  are  sure  to  win."  The  prosecutor  then  staked  his  two  notes  and 
the  seven  guineao.  Jones  guessed  right,  and  the  notes  lying  on  the 
table,  he  swept  them  all  off,  and  went  to  the  other  end  of  the  room, 
the  other  prisoners  sitting  still.  A  constable  immediately  came  and 
apprehended  the  prisoners.  The  prosecutor,  on  cross-examination, 
said  that  he  did  not  know  whether  the  101.  note  given  to  him  by 
Jones  on  showing  40/.  was  a  real  one  or  not.  That  having  won  the 
first  wager,  if  the  matter  had  ended  there,  he  should  have  kept  the 
guinea.  That  he  did  not  object  to  Jones  taking  his  40/.  when  he  lost, 
and  would  have  taken  the  40/.  if  he  had  won.  The  officers  found  on 
the  prisoners  many  pieces  of  paper  having  numbers,  such  as  100,  50, 
etc.,  something  in  the  manner  of  bank  notes,  the  bodies  of  the  notes 
being  advertisements  of  different  kinds.  No  good  notes  were  found 
upon  them,  but  about  eight  guineas  in  cash.  A  lump  of  paper  was 
put  into  the  prosecutor's  hands  by  Jones,  when  the  officers  came  in, 
which  was  afterwards  found  to  contain  the  two  post  bills.  On  the 
part  of  the  prisoners  it  was  contended,  that  this  was  a  mere  gaming 
transaction,  or  at  most  only  a  cheat,  and  not  a  felony.  A  doubt  being 
entertained  by  the  bench,  on  the  latter  point,  it  was  left  to  the  jury  to 
consider  whether  this  was  a  gaming  transaction,  or  a  preconcerted 
scheme  by  the  prisoners,  or  any  of  them  to  get  from  the  prosecutor 
the  post  bills  and  cash.  The  jury  were  of  opinion  that  it  was  a  pre- 
concerted scheme  in  all  of  them,  for  that  purpose,  and  found  them 
guilty ;  but  the  judges  held  the  conviction  wrong,  for  in  this  case  the 
property  as  well  as  possession  has  been  parted  with  by  the  prosecutor, 
under  the  idea  that  it  had  been  fairly  won.  E.  v.  Nicholson,  2  East, 
P.  C.  669;  2  Leach,  610. 

Proof  of  the  taking — possession  obtained  from  servant  by  fraud 
— possession  obtained  by  fraud — property  parted  with  by  servant. 
Sometimes  tlie  question  of  whether  the  prosecutor  has  parted  with  his 
property  in  the  goods  or  not  becomes  further  complicated  by  the 
question  whether  he  has  delegated  to  the  servant  a  general  authority 
or  only  a  limited  one,  and  if  the  latter  whether  the  servant  has 
pursued  such  limited  authority  or  not.  In  the  following  cases  it  has 
been  held  that  the  servant  having  only  a  limited  authority,  and  not 
*having  pursued  it,  the  property  has  not  passed,  and  the  pris-  r*p/^o 
oner  was  rightly  convicted.  If  a  carman  having  orders  to  de-  ^ 
liver  goods  to  a  certain  person,  in  mistake  deliver  them  to  another  per- 
son, who  appropriates  them  to  his  own  use,  such  person  is  guilty  of 
larceny,  as  the  carman  has  only  a  special  authority  and  does  not  part 
63 


834  LARCENY. 

with  his  master's  property  in  the  goods  by  delivering  them  to  a  wrong 
party.  R.  v.  Longstreeth,  1  Moo.  C.  C.  137 ;  R.  v.  Little,  10  Cox, 
C.  C.  559. 

In  the  case  of  R.  v.  Middleton,  which  is  stated  ante,  p.  652,  it  was 
thought  by  three  of  the  judges  (Bovill,  C.  J.,  Kelly,  C.  B.,  and 
Keating,  J.)  that  the  clerk  at  the  post-office  only  had  a  special  author- 
ity to  hand  the  proper  sum  to  the  proper  person  ;  but  by  two  of  the 
judges  (Bramwell,  B.,  and  Brett,  J.)  that  he  had  a  general  authority  to 
part  Avith  the  money. 

In  a  case  tried  before  Denman,  J.,  R.  v.Dowdeswell,  at  Derby  Spring 
Assizes,  1873,  the  prisoner  for  his  own  fraudulent  purposes  had  stopped 
the  letter  carrier,  and  by  a  lie  induced  him  to  deliver  up  certain  let- 
ters directed  to  other  persons,  and  the  learned  judge  ruled  that  the 
letter  carrier  could  not  be  held  to  be  the  agent  of  the  Post-lNIaster 
General  for  wrongfully  giving  up  the  letters,  and  that  the  offence  was 
a  larceny. 

The  prisoner,  by  false  statements,  induced  the  prosecutor  to  send 
him  by  his  servant,  to  a  particular  house,  goods  to  the  value  of  2s. 
lOd.  with  change  for  a  crown  piece.  On  the  way  he  met  the  servant, 
and  induced  him  to  part  with  the  goods  and  change,  giving  him  a  crown 
piece  which  proved  to  be  bad.  Both  the  prosecutor  and  the  servant 
swore  that  the  latter  had  no  authority  to  part  with  the  goods  or  change 
without  receiving  the  crown  piece  in  payment,  but  the  former  admitted 
that  he  intended  to  sell  the  goods,  and  never  expected  them  back  again. 
Mr.  Serjeant  Arabin  told  the  jury  that  if  they  thought  the  servant  had 
an  uncontrolled  authority  to  part  with  the  goods  and  the  change,  they 
ought  to  find  the  prisoner  not  guilty  ;  but  if  they  should  be  of  a  con- 
trary opinion,  then,  in  his  judgment,  it  amounted  to  larceny.  He 
further  stated  that  he  had  submitted  the  depositions  to  Parke,  B.,  and 
Patteson,  J.,  who  had  agreed  with  the  opinion  he  had  formed.  The 
learned  Serjeant  afterwards  said  to  the  jury,  "If  you  think  it  was  a 
preconcerted  scheme  to  get  possession  of  the  property,  without  giving 
anything  for  it,  and  that  the  servant  had  the  limited  authority  only, 
then  you  will  find  the  prisoner  guilty."  The  prisoner  was  convicted. 
R.  V.  Small,  8  C.  &  P.  46,  34  E.  C.  L.;  see  R.  v.  Prince  (post,  p.  664); 
R.  V.  Middleton,  ante,  p.  652. 

A.  received  goods  of  B.  (who  was  the  servant  of  C.)  under  color  of  a 
pretended  sale.  Coltman,  J.,  held  that  the  fact  of  A.  s  having  received 
such  goods  with  knowledge  that  B.  had  no  authority  to  sell,  and  that 
he  was  in  fact  defrauding  his  master,  was  sufficient  evidence  to  sup- 
port an  indictment  for  larceny  against  A.  jointly  with  B.  R.  v.  Hornby, 
1  C.  &  K.  305,  47  E.  C.  L. 

The  prisoner  was  indicted  for  stealing  a  quantity  of  stockings. 
Meeting  the  prosecutor's  apprentice  on  Ludgate  Hill,  he  asked  him  if 
he  was  going  to  Mr.  Heath,  a  hosier  in  Milk-street.  The  apprentice 
had  at  that  time  under  his  arm  two  parcels,  directed  to  Mr.  Heath, 
containing  the  articles  in  question ;  and  having  answered  in  the 
affirmative,  the  prisoner  told  him  that  he  knew  his  master,  and  owed 
him  for  the  parcels ;    and  he  then  gave  the  lad  a  parcel,  which  was 


LARCENY.  835 

♦afterwards  found  to  be  of  no  value,  telling  him  to  take  it  to  his  r^pp^ 
master  directly,  that  it  mi<!,ht  })e  forwarded  to  a  Mr.  Browne ;  L 
and  then  with  the  consent  of  the  apprentice,  he  took  from  him  the  par- 
cels in  question.  The  boy  then  left  the  prisoner,  but  retmnied  and 
asked  him  if  he  was  Mr.  Heath.  The  prisoner  replied  that  he  was  ; 
on  which  the  boy  again  left  him.  The  jury  found  the  prisoner  guilty ; 
but  the  recorder,  doubting  whether  the  i'acts  amounted  to  felony,  re- 
ferred the  case  to  the  judges,  who  were  of  opinion  that  the  conviction 
was  proper.  Mr.  Justice  Gould,  in  stating  the  reasons  of  the  judg- 
ment, laid  down  the  following  rules  as  clearly  settled  :  that  the  pos- 
session of  personal  chattels  follows  the  right  of  property  in  them ; 
that  the  possession  of  the  servant  Avas  the  possession  of  the  master, 
which  could  not  be  divested  by  a  tortious  taking  from  the  servant ; 
that  this  rule  held  in  all  cases  where  servants  had  not  the  absolute 
dominion  over  the  property,  but  were  only  intrusted  with  the  care  or 
custody  of  it  for  a  particular  purpose.  R.  v.  Wilkins,  2  East,  P.  C. 
673 ;  1  Leach,  520. 

In  the  following  case  it  has  been  held  that  the  servant  had  a  general 
authority  to  part  with  the  goods,  and  the  property  in  the  goods  having 
passed  to  the  prisoner  he  could  not  be  guilty  of  a  larceny  of  them. 
The  prisoner,  who  had  previously  pawned  certain  articles  at  the  shop 
of  the  prosecutor,  brought  a  packet  of  diamonds,  which  he  also  offered 
to  pawn,  receiving  back  the  former  articles.  The  prosecutor's  servant, 
who  had  authority  to  act  in  his  business,  after  looking  at  the  diamonds, 
delivered  them  back  to  the  prisoner  to  seal  up,  when  the  prisoner  sub- 
stituted another  parcel  of  false  stones.  He  then  received  from  the 
prosecutor's  servant  the  articles  previously  pledged,  and  carried  them 
away.  Being  indicted  for  stealing  these  articles,  Arabin,  Serjt.,  before 
whom  he  was  tried,  thought  that,  inasmuch  as  the  property  was  parted 
with  by  the  pawnbroker's  servant  absolutely,  under  the  impression  that 
the  prisoner  had  returned  the  parcel  containing  the  diamonds,  the 
offence  did  not  amount  to  felony  ;  and,  upon  a  case  reserved,  the 
judges  resolved  unanimously  that  the  case  was  not  larceny,  because  the 
servant,  who  had  a  general  authority  from  his  master,  parted  with  the 
property,  and  not  merely  with  the  possession.  R.  v.  Jackson,  1  Moody, 
C.  C.  119.     See  R.  v.  Longstreeth,  Id.  137. 

So  also  the  cashier  of  a  bank  has  a  general  authority  to  pay  money 
and  to  judge  of  the  genuineness  of  cheques,  and  it  is  no  larceny  to  ob- 
tain money  from  him  for  a  forged  cheque.  R.  v.  Prince,  L.  R.  1  C.  C. 
R.  150 ;  38  L.  J.,  M.  C.  8.  ^ 

Proof  of  the  taking — possession  obtained  by  threat.  The  pris- 
oner, who  was  an  auctioneer,  obtained  money  for  some  goods  by  as- 
serting that  a  woman  had  bid  for  them,  and  by  threatening  to  detain 
her  if  she  did  not  pay,  and  it  was  held  that  he  was  guilty  of  a  larceny 
of  the  money.  R.  v.  McGrath,  L.  R.  1  C.  C.  R.  205  ;  39  L.  J.,  M. 
C  7.  R.  V.  Hazell,  11  Cox,  C.  C.  597.  So  where  the  prisoner  obtained 
by  threats  a  larger  sum  than  was  due  for  knife  grinding,  he  was  held 
guilty  of  larceny.     R.  v.  Lovell,  8  Q.  B.  D.  185  ;  50  L.  J.,  M.  C.  91. 


836  LARCENY. 

Proof  of  the  taking — possession  obtained  by  false  process  of 
law.  Where  the  possession  of  goods  is  obtained  from  the  owner  by 
means  of  the  fraudulent  abuse  of  legal  process,  the  oifence  will  amount 
to  larceny.  Thus  it  is  laid  down  by  Lord  Hale,  that  if  A.  has  a  design 
jjj  -|  *to  steal  the  horse  of  B.,  and  enters  a  plaint  of  replevin  in  the 
J  Sheriff 's  Court  for  the  horse,  and  gets  him  delivered  to  him, 
and  rides  him  away,  this  is  taking  and  stealing,  because  done  in  fraud- 
em  legis.  So  where  A.,  having  a  mind  privately  to  get  the  goods  of 
B.  into  his  possession,  brings  an  action  of  ejectment,  and  obtains  judg- 
ment against  the  casual  ejector,  and  thereby  gets  possession  and  takes 
the  goods,  if  it  be  done  animo  furandi,  it  is  larceny.  1  Hale,  P.  C. 
507;  2  East,  P.  C.  650;  2  Russ.  Cri.  182,  5th  ed. 

Proof  of  the  taking — possession  obtained  by  bailees.  It  was 
formerly  said  that,  inasmuch  as  to  constitute  larceny  there  must  be 
such  a  taking  as  would  either  actually  or  constructively  amount  to 
a  trespass,  if  a  party  obtained  the  possession  of  goods  lawfully,  as 
upon  a  bailment  for  or  on  account  of  the  owner,  he  could  not  after- 
wards, so  long  as  that  bailment  continued,  be  guilty  of  larceny  in 
appropriating  the  goods  in  any  way  whatsoever,  as  the  wrongful 
change  of  possession,  a  necessary  ingredient  in  larceny,  had  never 
taken  place.^ 

But  now,  by  the  24  &  25  Vict.  c.  96,  s.  3,  "  whosoever,  being  a  bailee 
of  any  chattel,  money,  or  valuable  security,  shall  fraudulently  take  or 
convert  the  same  to  his  OAvn  use,  or  the  use  of  any  person  other  than 
the  owner  thereof,  although  he  shall  not  break  bulk  or  otherwise 
determine  the  bailment,  shall  be  guilty  of  larceny,  and  may  be  con- 
victed thereof  upon  an  indictment  for  larceny,  but  this  section  shall 
not  extend  to  any  offence  punishable  on  summary  conviction."  As 
to  this  last  proviso,  see  P.  v.  Daynes,  12  Cox,  C.  C.  R.  514. 

The  object  of  this  section  is  to  provide  for  the  cases  where  the 
possession  passes  from  the  real  owner,  though  not  the  property.     To 

^  Commonwealth  v.  Brown,  4  Mass.  580 ;  Commonwealth  i\  James,  1  Pick.  375.  An 
indictment,  which  charges  a  larceny  or  embezzlement  of  the  printed  sheets  of  a  certain 
publication,  is  not  supported  by  evidence  that  those  sheets  were  delivered  to  the  de- 
fendant by  the  owner  to  be  bound,  and  that  the  defendant,  after  he  had  folded,  stitched, 
bound,  and  trimmed  them,  embezzled  and  fraudulently  converted  them  to  his  own  use. 
In  such  case  the  indictment  should  charge  a  larceny  or  embezzlement  of  books.  Com- 
monwealth V.  Merritield,  4  Mete.  468.  Where  a  letter  is  given  to  deliver  to  another, 
breaking  it  open  and  taking  out  money  is  larceny.  Cheudle  v.  Buell,  6  O.  67.  See 
State  I'.  White,  2  Tvl.  352  ;  Welsh  v.  People,  17  111.  339 ;  Ennis  v.  State,  3  la.  67 ; 
State  V.  Watson,  41  "N.  H.  533  ;  State  r.  Humph  rev,  32  Vt.  569  ;  Nicholls  v.  People, 
3  Smith,  114;  State  v.  Fairclough,  29  Conn.  47  ;  People  v.  Poggi,  19  Cal.  600.  If  a 
Ijailee  intends  to  steal  property  when  he  obtains  possession,  and  does  so,  he  is  properly 
indicted  for  larceny.  People  v.  Smith,  23  Cal.  280.  A  Ijailee  who  obtains  possession 
of  property  by  delivering  under  a  pretence  of  hiring,  but  with  the  actual  design  of 
depriving  the  owner  of  his  property,  is  guilty  of  the  crime.  State  v.  Williams,  35 
Mo.  229.  If  a  trunk  is  left  in  the  custody  of  any  one  to  keep  safely,  and  he  opens  it, 
and  appropriates  part  or  the  whole  of  its  contents  to  his  own  use,  it  is  larceny.  Mar- 
cus V.  State,  26  Ind.  101.     S. 

Where  one  comes  into  possession  of  money  lawfully,  he  cannot,  by  converting  it,  be 
guilty  of  larceny.  In  such  a  case,  evidence  of  other  larcenies  cannot  be  introduced,  there 
being  no  corpus  delicti.    Shaft"  i;.  Commonwealth,  82  Ky.  173. 


LARCENY.  837 

bring  a  case  within  the  section  it  must  be  shown  that  there  was  such 
a  delivery  of  the  goods  as  to  vest  the  possession  of  them  for  the 
time  in  the  prisoner,  and  also  that  at  the  expiration  of  that  time  the 
goods  Avere  to  be  restored  to  the  bailor,  or  to  be  delivered  to  some  one 
else. 

A  carrier  who  receives  money  to  procure  goods  but  fraudulently 
retains  the  money  is  within  the  section.  R.  v.  Wells,  1  F.  &  F.  109. 
So  one  who  takes  a  watch  from  the  pocket  of  a  tipsy  man  with 
his  consent  is  a  bailee  of  the  watch.  R.  v.  Reeves,  5  Jur.  716.  But 
one  who  receives  money,  with  no  obligation  *o  return  the  identical 
coins,  is  not  a  bailee  of  such  coins  within  the  section.  R.  v.  Hassall, 
L.  &  C.  58 ;  and  see  also  R.  v.  Garrett,  2  F.  &  F.  14,  and  R.  v.  Ploare, 
1  F.  &  F.  647.  Where  the  prisoner  obtained  a  deed  from  the  pros- 
ecutor for  the  purpose  of  obtaining  money  upon  it,  and  obtained 
an  advance  of  140/.,  giving  the  deed  as  security,  and  ajijiropriated 
the  140/.  to  his  own  use,  it  was  held  that  the  prisoner  was  a  bailee 
of  the  det^d,  and  that  it  was  immaterial  that  he  was  at  liberty  either 
to  return  the  deed  or  the  money  to  the  prosecutor.  R.  v.  Tonkinson, 
14  Cox,  C.  C.  R.  603.  See  also  R.  v.  Aden,  12  Cox,  C.  C.  512.  Where 
a  traveler  receives  from  his  employers  silk  to  sell  for  them,  but 
which  is  to  remain  their  property  until  disposed  of  to  customers, 
such  traveler  is  rightly  convicted  of  larceny  as  a  bailee,  if  he 
fraudulently  disposes  of  them  for  his  own  use.  R.  v.  Richmond, 
12  Cox,  C.  C.  R.  495  ;  so  where  the  prisoner  was  to  have  two  brooches 
for  a  week  or  ten  days  to  sell,  but  after  ten  days  had  elapsed  he  sold 
them  and  arranged  for  their  redemption  at  the  end  of  two  months, 
he  was  held  guilty  of  larceny  as  a  bailee,  for  his  duty  was  to  return 
*the  two  brooches  in  ten  davs  if  he  could  not  sell  them  before,  r^npn 
R.  V.  Henderson,  11  Cox,  C.  C.  R.  593.  L  ^^^ 

The  prisoner,  who  received  a  bill  of  exchange  for  the  purpose  of 
getting  it  discounted,  and  handing  back  the  proceeds,  instead  of  getting 
it  discounted,  indorsed  it  as  his  own  to  a  creditor  in  payment  of  his 
account,  the  jury  finding  he  intended  to  pass  the  bill  absolutely  to  the 
creditor.  He  was  held  to  be  a  bailee  of  a  valuable  security,  and  guilty 
of  a  fraudulent  conversion  of  the  same  to  his  own  use.  R.  v.  Oxenham, 
46  L.  J.,  M.  C.  125. 

L.,  one  of  the  trustees  of  a  friendly  society  duly  enrolled,  was  sert 
to  the  bank  to  pay  to  the  credit  of  the  society  40/.  in  gold  and  silver, 
which  was  taken  from  a  box  in  the  pisr^ession  of  C,  the  treasurer.  L. 
applied  the  money  to  his  own  use.  Held,  that  he  was  not  a  bailee  of 
the  money  of  C.     R.  i\  Luce,  Bell,  C.  C.  259. 

The  prisoner  received  money  to  pay  for  some  coals,  and  he  was  to 
bring  them  home  in  his  own  cart.  He  purcliased  tlie  coals,  and  loaded 
them  into  his  own  aiH,  but  he  afterwards  abstracted  a  portion  of 
the  coals.  It  was  held  that  he  was  guilty  of  larceny  as  a  bailee, 
some  of  the  judges  thinking  that  the  c(jal  being  purchased  with 
money  given  by  the  prosecutor  for  that  purpose,  the  property  vested 
in  the  prosecutor,  and  that  thereupon  a  bailment  arose,  others  thinking 
that  there  ought  to  be  evidence  of  a  specific  appropriation  of  the  coals 


838  LARCENY. 

to  the  prosecutor,  and  all  the  court  agreed  that  there  was  such 
evidence.  R.  v.  Bunkhall,  33  L.  J.,  M.  C.  75;  L.  &  C.  371.  A 
carter  was  employed  by  the  owner  of  a  cargo  of  coals  to  go  and  load 
the  coals  in  his  cart  from  the  vessel,  and  deliver  specified  quantities 
to  persons  whose  names  were  on  a  list  given  to  the  carter.  He  sold 
two  of  the  loads  of  coal  fraudulently,  and  appropriated  the  moneys 
to  his  own  use  :  on  a  case  reserved  for  the  opinion  of  the  Court  of 
Crown  Cases,  he  was  held  to  be  rightly  convicted  of  stealing  the 
coals  of  the  awner  who  employed  him.  R.  v.  Da  vies,  10  Cox,  C.  C.  R. 
239. 

The  owner  of  a  wrecked  ship  made  a  contract  to  recover  the  wreck 
with  a  person  who  employed  tiie  defendant's  father  to  do  the  work. 
The  defendant  was  put  in  charge  of  the  wreck  by  his  father,  and 
while  so  engaged  corresponded  with  the  person  employed  by  the 
owner  of  the  wreck,  although  that  person  still  considered  the  father 
responsible.  The  defendant  stole  some  of  the  wreck,  and  the  jury 
found  that  he  did  so  an'imo  farandl,  but  were  not  asked  whether 
he  was  bailee.  It  was  held  by  the  majority  of  the  court  that  he  was 
a  bailee  and  was  rightly  convicted.  R.  v.  Clegg,  11  Cox,  C.  C.  212 
(Irish). 

AYhere  all  control  over  the  chattel  is  parted  with,  the  prisoner  can- 
not be  convicted  although  he  has  obtained  possession  by  fraud.  R.  v. 
Hunt,  8  Cox,  C.  C.  495. 

A  married  woman  can,  it  seems,  be  guilty  of  larceny  as  a  bailee 
under  the  above  section.    R.  v.  Robson,  L.  &  C.  93. 

Proof  of  the  taking — possession  obtained  by  servants.  There  has 
never  been  the  same  difficulty  made  about  finding  servants  guilty  of 
larceny  as  about  bailees  ;  probably  because  the  necessity  of  protecting 
masters  from  the  depredations  of  their  servants  was  more  apparent 
than  that  of  protecting  them  from  the  dishonesty  of  bailees.  Yet 
so  far  as  possession  is  concerned,  the  position  of  a  servant,  who  is  not 
a  slave,  cannot  be  distinguished  on  principle  from  that  of  a  bailee. 
*fir7l  *^^^>  however  this  may  be.  it  has  been  long  settled,  that  if  a 
J  servant  have  possession  of  his  master's  goods,  and  appropriate 
them  to  himself,  he  is  guilty  of  larceny  :  and  this  intention  to  appro- 
priate may  be  proved  by  any  unequivocal  act  or  acts  indicative  of  such 
an  intention.  This,  like  larceny  from  a  bailee,  comes  within  the  defi- 
nition of  larceny  given  above  (p.  647)  ;  the  wrongful  change  of  pos- 
session taking  place  by  the  servant  ceasing  to  hold  the  goods  for 
the  benefit  of  his  master,  and  assuming  to  hold  them  for  him- 
self.^ 

In  consequence  of  the  difference  in  the  law  as  applied  to  bailees 
and  servants,  it  was  before  the  passing  of  the  20  &  21  Vict.  c.  54,  s.  4, 

1  United  States  v.  Clew,  4  Wash.  C.  C.  700 ;  State  v.  Self,  1  Bay,  242 ;  Common- 
wealth V.  Brown,  4  Mass.  580;  Dame  v.  Baldwin,  8  Mass.  518;  McClure's  Case,  3  Rog. 
Rec.  154 ;  Commonwealth  v.  King,  9  Cush.  284;  People  r.Wood,  2  Parker,  C.  R.  22; 
State  V.  Schingen,  20  Wis.  74 ;  ]\Iarcus  v.  State,  26  Ind.  101 ;  State  v.  Jarvis,  63  N.  C. 
556;  Commonwealth  v.  O'Malley,  97  Mass.  584;  People  v.  BeMen,  17  Cal.  51  ;  State 
V.  Fann,  65  N,  C.  317 ;  Commonwealth  v.  Davis,  104  Mass.  548.     S. 


LARCENY.  839 

now  repealed,  very  important  to  distinguish  between  these  two  classes 
of  persons.  Thus  it  is  said  by  Lord  Hale  that  it  is  larceny  if  the 
butler  who  has  the  charge  of  his  master's  plate,  or  the  shepherd  who 
has  the  cliarge  of  his  master's  sheep,  appropriates  them,  and  so  it  is  of 
an  apprentice  that  feloniously  embezzles  his  master's  goods.  1  Hale, 
506 ;  2  East,  P.  C.  554.  So  where  a  carter  goes  away  with  his 
master's  cart.  11,  v.  Robinson,  2  East,  P.  C.  565  ;  11.  v.  Reid,  1 
Dears.  C.  C.  R.  257  ;  23  L.  J.,  M.  C.  25.  The  prisoner  was  a  drover, 
and  had  been  employed  by  the  prosecutor  as  such,  off  and  on,  for 
nearly  five  years.  Being  employed  by  him  to  drive  a  number  of 
sheep  to  a  fair,  he  sold  several  of  them,  and  applied  the  money 
to  his  own  purposes.  He  was  found  guilty  of  larceny  but  the  jury 
also  found  that  he  did  not  intend  to  steal  the  sheep  at  the  time  he 
took  them  into  his  possession.  On  a  case  reserved,  the  judges  ^ho 
met  were  of  opinion,  that  as  the  owner  parted  with  the  custody  only, 
and  not  with  the  possession,  the  prisoner's  possession  was  the  owner's, 
and  that  the  conviction  was  right.  R.  v.  M'Namee,  1  Moo.  C.  C. 
368.  Aliter  if  tiie  evidence  show  that  the  drover  was  not  the  servant 
of  the  prosecutor.  R.  v.  Hey,  1  Den.  C.  C.  R.  602.  In  this  case, 
Parke,  B.,  in  delivering  the  judgment  of  the  court,  said,  "After  the 
full  consideration  which  this  subject  has  undergone,  we  doubt  whether 
the  case  of  R.  v.  M'Namee  would  be  now  decided  in  the  same  way." 
The  doubt  being  as  to  the  propriety  in  that  case  of  considering  the 
prisoner  as  in  the  service  of  the  prosecutor.  The  prisoner  was  cm- 
ployed  by  the  prosecutor  as  his  foreman  and  bookkeeper,  but  did  not 
live  in  his  house.  The  prosecutor  delivered  a  bill  of  exchange  to 
him,  with  orders  to  take  it  to  the  post,  that  it  might  be  transmitted  to 
London.  The  prisoner  got  cash  for  the  bill,  with  which  he  absconded. 
It  was  objected  that  by  the  delivery  the  prosecutor  had  parted  with 
the  possession  of  the  bill,  and  the  case  was  likened  to  that  of  a  carrier 
intrusted  with  goods  ;  but  the  judges  held  it  larceny,  on  the  principle 
that  the  possession  still  remained  in  the  master.  R.  v.  Paradice,  2 
East,  P.  C.  565,  cited  1  Leach,  523,  524.  The  prisoner  was  employed 
as  a  porter  by  the  prosecutor,  who  delivered  to  him  a  parcel  to  carry 
to  a  customer.  While  carrying  it  he  met  two  men,  w  ho  persuaded 
him  to  dispose  of  the  goods,  which  he  did,  taking  them  out  of  the 
parcel  and  receiving  part  of  the  money.  All  the  judges  held  this  to 
be  larceny,  as  the  possession  still  remained  in  the  master.  R.  v.  Bass, 
2  East,  P.  C.  566 ;  1  Leach,  251,  523. 

So  where  the  prosecutor  delivered  to  his  servant  a  sum  of  money 
to  carry  to  a  person,  who  was  to  give  him  a  bill  for  it,  and  the  servant 
appropriated  it  to  his  own  use,  the  judges  were  of  opinion  that  this 
was  not  a  mere  breach  of  trust,  but  a  felony.  R.  v.  Lavender,  2 
*East,  P.  C.  566 ;  2  Russ.  Cri.  319,  5th  ed. ;  see  also  R.  r.  p^^gg 
Heath,  2  Moo.  C.  C.  33.  A.  employed  B.  to  take  his  barge  L 
from  one  particular  place  to  another,  and  paid  him  his  wages  in  ad- 
vance, and  gave  him  a  separate  sum  of  three  sovereigns  to  pay  the  ton- 
nage dues.  B.  took  the  barge  16  miles,  and  paid  tonnage  dues  to  an 
amount  rather  under  2/.  and  appropriated  the  remaining  sovereign  to 


840  LARCENY. 

his  own  use.  Patteson,  J.,  held  this  to  be  a  larceny.  R.  v.  Goode, 
Carr.  &  M.  582,  41  E.  C.  L.  See  also  R.  v.  Bearaan,  Carr.  &  M. 
595.  Where  the  servant  of  the  prosecutor  went  to  her  master's  wife, 
and  told  her  she  was  acquainted  with  a  person  who  could  give  her  ten 
guineas'  worth  of  silver,  and  the  prosecutor's  wife  gave  her  ten 
guineas  for  that  purpose,  which  she  ran  away  with,  she  was  found 
guilty  of  the  larceny.  R.  v.  Atkinson,  1  Leach,  302  (n) ;  2  Russ.  Cri. 

319,  5th  ed. 

A  servant  whose  duty  it  was  to  pay  workmen  obtained  fraudulently 
a  larger  sum  from  the  cashier  than  was  necessary,  intending  at  the 
time  to  appropriate  the  balance,  and  it  was  held  that  whether  the 
obtaining  was  in  the  first  instance  larceny  or  false  pretences,  yet  that 
the  money  while  in  the  servant's  custody  was  the  property  and  was  in 
the  possession  of  the  master,  and  therefore  the  misappropriation  of  it 
by  the  servant  was  larceny.  R.  v.  Cooke,  L.  R.  1  C.  C.  R.  295 ;  40 
L.  J.,  M.  C.  68.     See  ante,  p.  661. 

In  order  to  render  the  offence  larceny,  where  there  is  an  appropria- 
tion by  a  servant,  who  is  already  in  possession,  it  must  appear  that  the 
goods  were  at  the  time  in  the  constructive  possession  of  the  master. 
They  will  be  considered  in  the  constructive  possession  of  the  master 
if  they  have  been  once  in  the  possession  of  the  master,  and  have  been 
delivered  by  the  master,  or  by  his  orders,  to  the  servant.  But  if  the 
money  or  goods  have  come  to  the  possession  of  the  servant  from  a 
third  person,  and  have  never  been  in  the  hands  of  the  master,  they 
will  not  be  considered  to  be  in  the  constructive  possession  of  the  mas- 
ter for  the  purposes  of  larceny.  This  is  the  distinction  which  gave 
rise  to  the  passing  of  the  39  Geo.  3,  c.  85  (now  repealed),  creating  the 
offence  of  embezzlement.  See  p.  653,  and  infra,  p.  670.  The  rule 
has  never  been  doubted,  but  not  unfrequently  judges,  while  professing 
to  recognize  it,  have  given  decisions  with  Mdiich  it  is  scarcely  reconcil- 
able. The  origin  of  these  decisions  is  to  be  found  in  the  unsatisfac- 
tory state  of  the  criminal  law,  which  before  the  passing  of  the  last- 
mentioned  statute  left  a  large  class  of  offences  unprovided  for.  This 
remark  applies  to  some  of  the  following  cases. 

Where  a  clerk  or  servant  took  a  bill  of  exchange  belonging  to  his 
master,  got  it  discounted,  and  converted  the  proceeds  to  his  own  use, 
this  was  held  to  be  a  larceny  of  the  bill,  though  the  clerk  had  au- 
thority to  discount  bills.  It  was  contended,  on  behalf  of  the  pris- 
oner, that  the  bill  having  come  legally  into  his  possession,  like  any 
other  bill  of  the  prosecutor's  over  which  he  had  a  disposing  power, 
he  had  a  right  to  receive,  though  not  to  convert  the  money  to  his 
own  use,  which  was,  however,  only  a  breach  of  trust.  But  Heath,  J., 
was  clearly  of  opinion  that  it  was  felony,  the  bill  having  been  once 
decidedly  in  the  possession  of  the  prosecutor,  by  the  clerk  who  got  it 
accepted  putting  it  amongst  the  other  bills  in  the  prosecutor's  desk, 
and  the  prisoner  having  feloniously  taken  it  awav  out  of  that  posses- 
sion. R.  V.  Chipchase,  2  East,  P.  C.  567  ;  2  Leach,  699  ;  2  Russ.  Cri. 

320,  5th  ed. 

An  insurance  company  had  a  drawing  account  with  Glyn  &  Co., 


LARCENY.  841 

and  used  to  send  their  pass-book  on  Tuesday  in  every  week  to  be 
*written  up,  and  their  messenger  went  on  the  following  morn-  r^.(>nQ 
ing  to  bring  it  back,  when  it  was  returned  together  with  the  •- 
cheques,  etc.,  of  the  preceding  week.  The  prisoner  was  a  salaried 
clerk  in  the  office  of  the  company ;  it  was  his  duty  to  receive  the  jmss- 
book  and  vouchers  from  the  messenger,  and  to  preserve  the  vouchers 
for  the  use  of  the  company.  On  the  27th  of  February,  Glyn  &  Co. 
delivered  the  company's  pass-book,  containing,  amongst  other  things, 
a  certain  cashed  cheque  for  1,400^.,  to  the  messenger  of  the  company, 
who  delivered  the  book  and  cheque  to  the  prisoner  in  the  usual  way, 
and  he  thereupon  fraudulently  destroyed  it.  It  was  held  that  the  pris- 
oner had  been  rightly  convicted  of  larceny  as  a  servant,  inasmuch  as  the 
cheque,  when  delivered  into  his  custody  in  the  usual  course  of  busi- 
ness, Avas  constructively  in  the  possession  of  the  directors,  who,  under 
the  circumstances,  were  his  masters.  R.  v.  Watts,  2  Den.  C.  C.  R. 
14;  19  L.  J.,  M.  C.  193;  R.  v.  Murray,  1  Moo.  C.  C.  276;  and 
R.  V.  Masters,  1  Den.  C.  C.  R.  332,  applied  and  distinguished  the  one 
from  the  other. 

But  if  the  money  or  goods  be  deposited  in  some  receptacle  which 
is  itself  in  the  actual  or  constructive  possession  of  the  master,  then 
the  constructive  possession  of  the  master  extends  to  the  goods  so  de- 
posited, so  that  a  subsequent  appropriation  of  them  by  the  servant  will 
be  larceny.  Thus  the  prisoner  was  ordered  by  his  masters,  the  prose- 
cutors, to  go  with  their  barge  to  one  Wilson,  a  corn-meter,  for  as  much 
corn  as  the  barge  would  carry,  and  which  was  to  be  brought  in  loose 
bulk.  The  prisoner  received  230  quarters  in  loose  bulk,  and  five 
other  quarters,  which  he  ordered  to  be  put  in  sacks,  and  afterwards 
appropriated.  The  question  reserved  for  the  opinion  of  the  judges 
w^as,  whether  this  was  felony,  the  corn  never  having  been  in  the  pos- 
session of  the  prosecutors,  or  whether  it  was  not  like  the  case  of  a 
servant  receiving  charge  of  or  buying  a  thing  for  his  master,  but 
never  delivering  it ;  but  they  held  that  this  was  larceny  in  the  servant, 
for  it  was  a  taking  from  the  actual  possession  of  the  owner  as  much  as 
if  the  oats  had  been  in  his  granary.  R.  v.  Spears,  2  East,  P.  C.  568  ; 
2  Leach,  826;  2  Russ.  on  Cri.  312,  5th  ed.  In  a  similar  case,  where 
the  prisoner,  a  servant  of  the  prosecutors,  came  alongside  a  vessel  in 
which  there  was  a  quantity  of  corn  which  had  been  purchased  by  the 
prosecutors,  and  procured  a  portion  to  be  put  into  sacks,  which  he  car- 
ried away  and  sold,  never  having  been  employed  to  sell  corn  by  his 
masters;  on  a  case  reserved  the  judges  held  this  to  be  larceny.  The 
property  of  the  prosecutors  in  the  corn,  observes  Mr.  East,  was  com- 
plete before  the  delivery  to  the  prisoner,  and  after  the  purchase  of  it 
in  the  vessel,  they  had  a  lawful  and  exclusive  possession  of  it  against 
all  the  world,  but  the  owner  of  the  vessel.  R.  v.  Abrahat,  2  East, 
P.  C.  569;  2  Leach,  824  ;  2  Russ.  on  Cri.  314,  5th  ed.  These  author- 
ities were  considered  and  supported  in  R.  v.  Johnson,  2  Den.  C.  C.  R. 
310;  21  L.J.,M.  C.  32. 

When  the  prisoner  was  sent  with  his  master's  cart  for  some  coals 
which  were  delivered  to  him  and  deposited  in  the  cart,  and  the  price 


842  LARCENY. 

charged  to  his  master's  account,  and  on  the  road  home  the  prisoner  dis- 
posed fraudulently  of  a  portion  of  the  coals,  it  was  held  that  this  was 
larceny,  and  not  an  embezzlement,  the  coals  being  constructively  in 
the  possession  of  the  master  when  deposited  in  the  cart.  R,  v.  lleid, 
Dears.  C.  C.  257  ;  23  L.  J.,  M.  C.  25. 

And  in  a  more  recent  case,  the  prisoner  was  to  bring  home  the 
coals  in  his  own  cart,  and  be  paid  for  his  services,  including  the  use 
*«7m  *^^  ^^^^  ^"'*''  -^^  appropriated  part  of  the  coals.  It  was  held 
^  that  he  was  rightly  convicted  of  larceny  as  a  bailee,  though  there 
was  no  larceny  at  common  law.  Some  of  the  judges  thought  that  the 
property  in  the  coals  passed  to  the  employer  as  soon  as  they  were  pur- 
chased with  his  money,  and  that  no  specific  appropriation  of  the  coals 
to  the  prosecutor  was  necessary,  but  all  thought  that  there  was  evi- 
dence of  such  an  appropriation.  R.  v.  Bunkall,  L.  &  C.  371 ;  33 
L.  J.,  M.  C.  75. 

A  very  similar  case  to  that  of  R.  v.  Reid  was  that  of  R.  v.  Wright, 
Dears.  &  B.  C.  C.  431.  The  prisoner  was  employed  by  a  banking 
company  to  conduct  a  branch  bank,  and  the  whole  of  the  duties  of 
that  branch  were  conducted  by  him  alone.  His  salary  not  only  in- 
cluded payment  for  his  services,  but  also  for  providing  an  office  in  his 
own  house,  where  he  carried  on  another  business,  for  the  purposes  of 
the  bank.  In  this  office  was  an  iron  safe,  provided  by  the  bank,  into 
which  it  was  the  duty  of  the  prisoner  to  put  at  night  money  which 
had  been  received  during  the  day,  and  which  had  not  been  required 
for  the  purposes  of  the  bank.  The  manager  of  the  bank  kept  a  key 
of  this  box  as  well  as  the  prisoner.  The  prisoner  furnished  weekly 
accounts  of  moneys  received  and  paid  by  him,  showing  the  balance  in 
his  hands,  and  of  what  notes,  cash,  or  securities  that  balance  con- 
sisted. In  September,  1855,  the  prisoner's  accounts  were  audited,  and 
his  cash  examined  and  found  correct ;  but  for  the  two  years  following, 
though  the  weekly  accounts  were  furnished  as  usual,  the  cash  balance 
was  not  examined.  In  September,  1857,  the  manager  having  come  to 
examine  the  cash  balance,  the  prisoner  said  he  was  3,000/.  short,  and 
handed  over  to  the  manager  755/.  10s.,  which  he  said  was  all  the  cash 
he  had  left,  and  which  sura  he  took  from  a  drawer  in  the  counter,  and 
not  from  the  safe.  The  jury  found  the  prisoner  guilty  of  larceny  as 
a  clerk,  and  the  Court  of  Criminal  Appeal  held  that  there  was  evi- 
dence that  the  prisoner,  as  his  duty,  was,  placed  in  the  safe  the  money 
which  he  had  received  from  the  customers;  that  he  thereby  deter- 
mined his  own  exclusive  possession  of  the  money,  and  that  by  taking 
some  of  such  money  out  of  the  safe,  amnio  far andi,  he  was  guilty  of 
larceny. 

A.  had  agreed  to  buy  straw  of  B.,  and  sent  his  servant  C.  to  fetch 
it.  C.  did  so,  and  put  down  the  whole  quantity  of  straw  at  the  door 
of  A.'s  stable,  which  was  in  a  courtyard  of  A.,  and  then  went  to  A. 
and  asked  him  to  send  some  one  with  the  key  of  the  hayloft,  which 
was  over  the  stable,  which  A.  did,  and  C.  put  part  of  the  straw  into 
the  hayloft,  and  carried  the  rest  away  to  the  public-house  and  sold  it. 
Tindal,  C.  J.,  held  that  this  carrying  away  of  the  straw  by  C,  if  done 


LARCENY.  843 

with  a  felonious  intent,  was  a  larceny,  and  not  an  embezzlement,  as 
the  delivery  of  straw  to  A.  was  complete  when  it  was  put  down  at 
the  stable  door.     II.  v.  Hay  ward,  1  C.  &  K.  518,  47  E.  C.  I.. 

The  following  are  cases  in  which  the  master  or  employer  has  been 
held  not  to  have  such  a  possession  as  is  necessary  in  order  that  the  ser- 
vant may  be  guilty  of  larceny. 

The  prisoner,  a  cashier  at  the  Bank  of  England,  was  indicted  for 
stealing  certain  India  bonds,  laid  as  the  property  of  the  bank  in  one 
count,  and  in  another,  of  a  person  unknown.  The  bonds  were  paid 
into  the  bank  by  order  of  the  Court  of  Chancery,  and,  according  to 
the  course  of  business,  ought  to  have  been  deposited  in  a  chest  in  the 
cellars.  The  prisoner,  who  received  them  from  the  Court  of  Chan- 
cery, put  them  in  his  own  desk,  and  afterwards  sold  them.  The 
*court  before  which  the  prisoner  was  tried  was  of  opinion  that  r*p7i 
this  was  not  larceny  ;  that  the  possession  of  the  bonds  was  •- 
always  in  the  prisoner,  and  that  the  bank  had  no  possession  which  was 
not  his  possession  until  the  bonds  were  deposited  in  the  cellars  as  usual ; 
and  one  of  the  judges  took  the  distinction  between  a  possession  suffi- 
cient to  maintain  a  civil  action,  and  a  possession  whereon  to  found  a 
criminal  prosecution.  R.  v.  Waite,  2  East,  P.  C.  570.  Money,  in 
cash  and  bank-notes,  was  paid  into  a  bank  to  a  clerk  there,  whose 
duty  it  was  to  receive  and  give  discharges  for  money,  and  to  place 
the  bank-notes  in  a  drawer  ;  he  gave  an  acknowledgment  for  the  sum 
in  question,  but  kept  back  a  lOOl  bank  note,  and  never  put  it  in  the 
drawer.  On  a  case  reserved,  some  doubt  was  at  first  entertained 
amongst  the  judges,  but  at  last  all  assembled  agreed  that  this  was  no 
felony,  inasmuch  as  the  note  was  never  in  the  possession  of  the  bank- 
ers, distinct  from  the  possession  of  the  prisoner,  though  it  would  have 
been  otherwise  if  the  prisoner  had  deposited  it  in  the  draAver,  and  had 
afterwards  taken  it.  They  thought  that  this  was  not  to  be  distinguished 
from  the  cases  of  R.  v.  Waite,  supra,  and  R.  v.  Bull,  infra,  which 
turned  on  this  consideration,  that  the  thing  was  not  taken  by  the  pris- 
oner out  of  the  possession  of  the  owner,  and  here  it  was  delivered  into 
the  possession  of  the  prisoner.  They  said,  that  though  to  many  pur- 
poses the  note  was  in  the  possession  of  the  masters,  yet  it  Avas  also  in 
the  actual  possession  of  the  servant  and  that  possession  not  to  be  im- 
peached, for  it  was  a  lawful  one.  Eyre,  C.  J.,  also  observed  that  the 
cases  ran  into  one  another  very  much,  and  Avere  hardly  to  be  distin- 
guished ;  and  that  in  R.  v.  Spears,  ante,  p.  669,  the  corn  AA'as  in  the 
possession  of  the  master,  under  the  care  of  the  servant.  R.  v.  Bazley, 
2  East,  P.  C.  571  ;  2  Leach,  835.  It  Avas  in  consequence  of  this  case 
the  statute  39  Geo.  3,  c.  85  (noAV  repealed),  against  embezzlement  by 
clerks  and  servants,  Avas  passed.  2  Russ.  Cri.  326,  5th  ed.  The  prose- 
cutor suspecting  that  he  Avas  robbed  by  the  prisoner,  his  serA^ant,  Avho 
attended  the  shop,  employed  a  customer  to  come  to  his  shop  on  pre- 
tence of  purchasing,  and  gave  him  some  marked  sih'cr  of  his  OAvn, 
Avith  Avhich  the  customer  came  to  the  shop  in  the  absence  of  the  OAvner, 
and  bought  goods  of  the  prisoner.  Soon  after,  the  master  coming  in, 
examined  the  till,  in  which  the  prisoner  ought  to  have  deposited  the 


844  LARCENY. 

money  when  received,  and  not  finding  it  tliere,  procured  him  to  be 
arrested,  and,  on  search,  tlie  marked  money  was  found  upon  him.  On 
a  case  reserved,  the  judges  were  of  opinion  that  the  prisoner  was  not 
guilty  of  felony,  but  only  of  a  breach  of  trust,  the  money  never  having 
been  put  into  the  till ;  and,  therefore,  not  having  been  in  the  possession 
of  the  master  as  against  the  defendant.  11.  v.  Bull,  cited  in  11.  v.  Bazley, 
2  East,  P.  C.  572  ;  2  Leach,  841  ;  2  Russ.  Cri.  326,  5th  ed.  So  where 
a  servant  was  sent  by  Ids  master  to  get  change  of  a  5/.  note,  which  he 
did,  saying  it  was  for  his  master,  but  never  returned,  being  convicted 
of  stealing  the  change,  the  judges,  on  a  case  reserved,  held  this  to  be  no 
larceny,  because  the  master  never  had  possession  of  the  change  except  by 
the  hands  of  the  prisoner.  R.  v.  Sullen,  1  Moody,  C.  C.  129.  So  where 
A.  owed  the  prosecutor  5/.  and  paid  it  to  the  prisoner,  who  was  the  pros- 
ecutor's servant,  supposing  him  authorized  to  receive  it,  which  he  was 
not,  and  the  prisoner  never  accounted  for  the  money  to  his  master, 
Alderson,  B,,  held  that  this  was  neither  embezzlement  nor  larceny. 
R.  V.  Hawtin,  7  C.  &  P.  281 ,  32  E.  C.  L.  Where  the  prisoner  was  sent 
by  his  fellow-workmen  to  their  common  employer  to  get  their  wages, 
*fi79l  *^"^  ^^^  received  the  money  wrapped  up  in  paper,  the  names 
1  and  sums  due  being  written  inside  the  paper,  it  was  held  that 
he  was  the  agent  of  his  fellow-workmen,  and  could  not  be  convicted 
on  an  indictment  laying  the  property  in  the  employer.  R.  v.  Barnes, 
L.  R.  1  C.  C.  R.  45;  35  L.  J.,M.C.  204. 

Proof  of  the  intent  to  deprive  the  owaer  of  his  property.     We 

now  come  to  the  other  ingredient  which  is  necessary  to  constitute  lar- 
ceny ;  the  intent  to  deprive  the  owner  of  his  property.  This,  like  every 
other  intent,  is  to  be  inferred  from  the  mode  in  which  the  party  charged 
deals  with  the  property.  It  will,  however,  be  a  general  presumption 
that  where  a  party  takes  wrongful  possession  of  the  goods  of  another, 
that  his  intention  is  to  steal  them,  and  the  onus  will  lie  upon  him  to 
prove  thecontrary.^  If  a  man  carries  away  the  goods  of  another  openly, 
though  wrongfully,  before  his  face,  this  carries  with  it  evidence  of  be- 
ing a  trespass  only.  1  Hale,  P.  C.  509.  A  servant,  taking  his  mas- 
ter's horse  to  ride  on  his  own  business  is  not  guilty  of  larceny.  Id. 
The  prisoners  were  charged  with  stealing  two  horses.  It  appeared 
that  they  went  in  the  night  to  an  inn  kcjit  by  the  prosecutor,  and  took 
a  horse  and  mare  from  the  stable,  and  rode  about  thirty-three  miles  to 
a  place  where  they  left  them  in  the  care  of  the  ostler,  stating  that  they 
should  return.  They  were  apprehended  on  the  same  day  about  four- 
teen miles  from  the  place.  The  jury  found  the  prisoners  guilty,  but 
added  that  they  were  of  opinion  that  the  prisoners  merely  meant  to 
ride  the  horses  to  the  place  where  they  left  them,  and  to  leave  them 
there ;  and  that  they  had  no  intention  either  of  returning  them  or 
making  any  further  use  of  them.  The  judges  (Grose,  J.  diss.,  and 
Lord  Alvanley  not  giving  any  express   opinion)  held  that,  upon  this 

'On  trial  for  larceny  of  a  horse  the  accused  may  show  that  just  before  the  takin» 
he  had  arranged  with  a  tliird  person  to  return  tlie  horse  to  its  owner,  after  being 
driven  to  a  certain  town.     State  v.  JShermer,  55  Mo.  83. 


LARCENY.  845 

finding,  it  was  a  trespass  only,  and  not  a  larceny.  They  all  agreed 
that  it  was  a  question  for  the  jury,  and  that,  if  the  jury  had  found  a 
general  verdict  of  guilty  on  this  evidence,  it  could  not  be  questioned. 
K.  V.  Phillips,  2  East,  P.  C.  662.  So  where,  upon  an  indictment  for 
stealing  a  horse,  two  saddles,  etc.,  it  appeared  the  prisoner  got  into  the 
prosecutor's  stables  and  took  away  the  horse  and  other  articles  all  to- 
gether; but  that,  when  he  had  got  some  distance  he  turned  the  horse 
loose,  and  proceeded  on  foot  with  the  saddles  ;  Garrow,  B.,  left  it  to 
the  jury  to  say,  M'hether  the  prisoner  had  any  intention  of  stealing  the 
horse;  for  that  if  he  intended  to  steal  the  other  articles,  and  only  used 
the  horse  as  a  mode  of  carrying  oif  the  plunder  more  conveniently,  he 
would  not  be  guilty  of  larceny  of  the  horse.  R.  v.  Crump,  1  C.  & 
P.  658,  12  E.  C.  L.  Upon  the  same  principle  the  following  case  was 
decided.  The  prisoner  was  indicted  for  stealing  a  straw  bonnet.  It 
appeared  that  he  entered  the  house  where  the  bonnet  was,  through  a 
window  which  had  been  left  open,  and  took  the  bonnet  which  belonged 
to  a  young  girl  whom  he  had  seduced,  and  carried  it  to  a  hay-mow  of 
his  own,  where  he  and  the  girl  had  been  twice  before.  The  jury 
thought  that  the  prisoner  intended  to  induce  the  girl  to  go  again  to  the 
hay-mow,  but  that  he  did  not  intend  to  deprive  her  of  the  bonnet. 
Of  course  this  was  held  not  to  be  larceny.  R.  v.  Dickenson,  E,uss. 
&  Ry.  420. 

It  is  not  necessary  that  the  prisoner  should  intend  to  appropriate 
the  goods  to  his  own  benefit ;  it  is  sufficient  if  he  intends  to  deprive 
the  owner  of  his  property  in  them,  and  in  the  words  of  Parke,  B.,  in 
R.  V.  Holloway,  infra,  to  assume  the  entire  dominion  over  them.  As 
where  the  prisoner  took  away  a  horse  for  the  purpose  of  destroying 
*it ;  R.  V.  Cabbage,  supra,  p.  648  ;  and  where  a  servant  took  a  r*n7o 
letter  for  the  same  purpose  ;  R.  v.  Jones,  Id,'  L 

In  R.  V.  Morfit,  Russ.  &  Ry.  307,  the  prisoners  were  charged  with 
stealing  a  quantity  of  beans.  They  were  servants  of  the  prosecutor, 
and  took  care  of  his  horses,  for  which  the  prosecutor  made  them  an 
allowance  of  beans.  The  prisoners  had  entered  the  granary  by  means 
of  a  false  key,  and  carried  away  a  quantity  of  beans,  which  they 
gave  to  the  prosecutor's  horses.  The  case  was  reserved,  and  eight 
judges  out  of  eleven  thought  it  was  felony  ;  but  some  of  the  judges 
gave  as  a  reason  for  their  decision  that  the  men's  work  was  lessened 
by  the  additional  food  given  to  the  horses,  and  so  that  there  was  in 
some  sort  a  benefit  to  themselves.  This  decision  was  acted  on  in 
R.  V.  Handley,  Carr.  &  M.  547,  41  E.  C.  L.,  by  Patteson,  J.,  who  re- 
fused to  reserve  the  point.  But  in  R.  v.  Privett,  1  Den.  C.  C.  193,  the 
point  was  again  reserved.  There  the  jury  found  distinctly  that  the  pris- 
oners "  took  the  oats  with  the  intent  of  giving  them  to  their  master's 

'  To  constitute  a  felonious  intent,  it  is  not  necessary  that  the  taking  should  be  Iwri 
cavsd ;  taking  with  intent  to  destroy  is  sufficient.  Dignowitty  v.  State,  17  Tex.  521 ; 
Hamilton  v.  State,  35  Miss.  214.     S. 

To  constitute  larceny  it  is  not  necessary  thai  the  property  be  taken  with  intent  to 
convert  it  to  the  taker's  own  use.  It  is  sufficient  if  it  be  taken  with  the  felonious 
intent  to  convert  it  to  the  use  of  a  person  other  tlian  the  owner.  State  v.  Wellman,  7 
Crim.  Law  Mag.  257. 


846  LARCENY. 

horses,  and  witliout  any  intent  of  applying  them  to  their  private  bene- 
fit." The  greater  part  of  tlie  judges  present  appeared  to  think  that 
this  was  larceny,  because  the  prisoners  took  the  oats  knowingly, 
against  the  will  of  the  owner,  and  without  any  color  of  title  or  of  au- 
thority, with  intent  not  to  take  temporary  possession  merely  and  then 
abandon  it  (which  would  not  be  larceny),  but  to  take  the  entire  domin- 
ion over  them,  and  that  it  made  no  difference  that  the  taking  was  not 
lucrl  causd,  or  that  the  object  of  the  prisoners  was  to  apply  the  things 
stolen  in  a  way  which  was  against  the  wish  of  the  owner,  but  might 
be  beneficial  to  him.  But  all  agreed,  that  they  were  bound  by  the 
previous  decisions  to  hold  this  to  be  larceny,  though  several  of  them 
expressed  a  doubt  if  they  should  have  so  decided  if  the  matter  were 
res  Ititegra.  Erie,  J.,  aud  Piatt,  B.,  were  of  a  different  opinion  ; 
they  thought  that  the  former  decision  proceeded,  in  the  opinion  of 
some  of  the  judges,  on  the  supposition  that  the  prisoners  would  gain 
by  the  taking,  which  was  rejected  in  this  case  ;  and  they  were  of  opin- 
ion that  the  taking  was  not  felonious,  because  to  constitute  a  larceny 
it  was  essential  that  the  prisoner  should  intend  to  deprive  the  owner 
of  the  property  in  the  goods,  which  he  could  not  if  he  meant  to 
apply  it  to  his  use.  MS.  of  Parke,  B.,  as  given  in  Denison.  But 
now  by  the  2S  &  27  Vict.  c.  103,  s.  1,  any  servant  taking  from  his 
master's  possession  any  corn,  pulse,  roots,  or  other  food,  contrary  to  his 
master's  orders,  for  the  purpose  of  giving  the  same  to  his  master's 
horses  or  other  animals,  shall  not  by  reason  thereof  be  deemed  guilty 
of  or  be  proceeded  against  for  felony. 

In  another  case  the  prisoner  was  supplied  with  a  quantity  of  pig- 
iron  by  B.  &  Co.,  his  employers,  which  he  was  to  put  into  a  furnace 
to  be  melted,  and  he  was  paid  according  to  the  weight  of  the  metal 
which  ran  out  of  the  furnace,  and  became  puddle-bars.  A.  put  the 
pig-iron  into  the  furnace,  and  also  put  in  with  it  an  iron  axle  of  B.  & 
Co.,  which  was  not  pig-iron  ;  the  value  of  the  axle  to  B.  &  Co.,  was 
7s.,  but  the  gain  to  the  prisoner  by  melting  it,  and  thus  increasing  the 
quantity  of  metal  which  ran  from  the  furnace  was  Id.  Tindal,  C.  J., 
held  that  if  the  prisoner  put  the  axle  into  the  furnace  vvith  an  intent 
to  convert  it  to  a  purpose  for  his  own  j^rofit,  it  was  larcenv.  R.  v. 
Richards,  1  C.  &  K.  532,  47  E.  C.  L. 

While  the  prisoner  took  some  skins  of  leather,  not  with  the  intent 
to  sell  or  dispose  of  them,  but  to  bring  them  in  and  charge  them  as 
his  own  work,  and  get  paid  by  his  master  for  them  ;  they  having  been 
*fi74l  *dressed,  not  by  the  prisoner,  but  by  another  workman  ;  it  was 
-■  held  not  to  be  a  larceny.  R.  v.  Holloway,  1  Den.  C  C.  381. 
The  distinction  between  this  case  and  the  last  seems  to  be  this  :  that 
in  the  former  there  was  such  a  conversion  of  the  goods  to  the  jirison- 
er's  own  purposes  as  that  the  master  never  could  have  them  again  in 
their  original  condition ;  whereas  in  the  latter  their  condition  was 
never  altered.  So  in  R.  y.  Poole,  Dears.  &  B.  C.  C.  345,  the  prisoners 
were  in  the  prosecutor's  employ  as  glove  finishers,  and  the  practice  was 
to  take  the  finished  gloves  into  an  upper  room  on  the  prosecutor's  prem- 
is&s,  and  lay  them  on  a  table,  in  order  that  the  workmen  might  be 


LARCENY.  847 

paid  according  to  the  number  they  had  finished.  The  prisoners  took 
a  quantity  of  finished  gloves  out  of  a  store-room  on  the  same  premises, 
and  laid  them  on  the  table  with  intent  fraudulently  to  obtain  pay- 
ment for  them  as  for  so  many  gloves  finished  by  them.  It  was  held 
that  this  was  not  larceny. 

Where  a  servant  took  his  master's  goods,  and  offered  them  for  sale 
to  the  master  himself,  as  the  goods  of  another,  he  was  held  to  be  guilty 
of  larceny,  as  it  was  clear  that  he  intended  to  assume  the  entire 
dominion  over  the  goods.  R.  v.  Hall,  1  Den.  C.  C.  381  ;  18 
L.  J.,  M.  C.  62 ;  ace.  R.  v.  Manning,  Dears.  C.  C.  21  :  22  L.  J.,  M. 
C.  21. 

If  the  prisoner  has  once  assumed  the  entire  dominion  over  the 
goods,  a  return  of  the  goods  will  not  be  sufficient  to  prevent  the  of- 
fence amounting  to  larceny.  Thus,  where  the  prosecutrix  had  deposi- 
ted a  box  of  plate  with  the  prisoner  for  safe  custody,  which  he  broke 
open,  and  took  out  the  plate  and  pawned  it,  the  jury  found  a  verdict 
of  guilty,  but  recommended  the  prisoner  to  mercy  on  the  ground 
that  they  believed  that  he  intended  ultimately  to  return  the  property. 
Some  of  the  judges  doubted  whether  this  was  in  law  any  other  than 
a  general  verdict  of  guilty,  but  all  thought  that  the  conviction  was 
good.  R.  V.  Trebilcock,  Dears.  &  B.  C.  C.  453.  See  R.  v.  Peat, 
supra,  p.  649, 

Proof  of  the  intent  to  deprive  the  owner  of  his  property — goods 
taken  under  a  fair  claim  of  right.  Of  course  if  the  prisoner  believe 
that  he  has  a  right  to  the  goods  there  can  be  no  larceny,  even  if  the 
goods  be  taken  by  force ;  because  though  the  seizure  be  M^rongful,  the 
intent  to  steal  is  wanting.^  2  East,  P.  C.  659.  Thus  where  the 
owner  of  land  takes  a  horse  damage  feasant,  or  a  lord  seizes  it  as 
an  estray,  though  perhaps  without  title,  yet  these  circumstances 
explain  the  Intent,  and  show  that  it  was  not  felonious  ;  but  these  facts 
may  be  rebutted,  as  by  showing  that  the  horse  was  marked,  in  order 
to  disguise  him.  1  Hale,  P.  C.  506,  507  ;  2  East,  P.  C.  659, 
After  a  seiziu'e  of  uncustomed  goods,  several  persons  broke,  at  night, 
into  the  house  where  they  were  deposited  with  intent  to  retake  them 
for  the  benefit  of  the  former  owner ;  it  was  held  that  this  design 
rebutted  the  presumption  of  a  felonious  intent.  R.  v.  Knight,  2  East, 
P.  C.  510,  659. 

Whether  the  taking  of  corn  by  gleaners  is  to  be  considered  as  a 
trespass  only,  or  whether  it  is  to  be  regarded  as  a  felony,  must  de- 
pend upon  the  circumstances  of  the  particular  case.  In  some  places 
a  custom,  authorizing  the  practice  of  gleaning,  is  said  to  exist ;  in 
others,  it  is  sanctioned  by  the  permission  of  the  tenant  of  the  land ; 

^  Where  property  is  taken  in  a  fair  color  of  claim  or  title,  a  felonious  intent  is 
wanting,  and  it  is  therefore  no  larceny.  St  .te  v.  Holmes,  17  Mo.  379.  S.  Debbs  v. 
State,  43  Tex.  680. 

Where  evidence  of  the  defendant's  good  faith,  in  appropriating  the  property,  under 
a  fair  claim  of  right,  leaves  a  reasonable  doubt  of  the  fraudulent  intent,  he  should  be 
acquitted.  Camplin  v.  State,  1  Tex.  App.  lOS.  It  is  error  for  the  court  to  fail  to 
instruct  on  such  evidence.     Ray  v.  State,  13  Tex.  App.  51. 


848  LARCEXY. 

and  even  where  no  right  whatever  exists,  yet  if  the  party  carry  away 
the  corn  under  a  mistaken  idea  of  right,  the  act  would  not  amount 
to  larceny,  the  felonious  intent  being  absent.  A  conviction  is  said 
to  have  taken  place  at  the  Old  Bailey,  upon  an  indictment  for  the 
^^r-c-i  *exercise  of  this  supposed  right;  but  the  circumstances  of  the 
^  J  case  are  not  stated.  2  Kuss.  Cri.  203,  5th  ed.  See  li.  v.  Price, 
4  Burr.  1925;  1  H.  Bl.  51. 

Larceny  of  goods  found.  A  good  deal  of  trouble  has  been  caused 
by  cases  of  goods  obtained  by  finding.  It  will  be  useful  .to  consider, 
in  reference  to  these  cases,  both  what  is  the  right  of  a  person  who  finds 
goods,  and  what  is  necessary  to  constitute  larceny. 

The  right  of  a  person  who  finds  goods  is  to  take  possession  of  them, 
if  they  have  no  apparent  owner. 

If  at  the  time  the  property  be  taken  possession  of  there  be  no 
apparent  owner,  the  subsequent  discovery  of  one  will  not  render  the 
original  taking  unlawful,  nor  will  it  render  the  finder  a  bailee  for  the 
true  owner.  No  conversion  of  the  property,  therefore,  subsequent 
to  the  discovery  of  the  true  owner,  will  render  the  finder  guilty  of 
larceny. 

In  order,  therefore,  to  constitute  a  larceny  of  lost  goods,  there  must 
be  a  felonious  intent  at  the  time  of  the  finding,  coupled  with  reason- 
able means  at  the  same  time  of  knowing  the  owner.  It  will  be  found 
that  this  is  the  result  of  the  following  authorities.^ 

The  great  question,  therefore,  is  to  discover  when  the  property  can 
be  said  to  have  no  apparent  owner.  That  has  been  the  main  subject 
for  discussion  in  the  following  cases. 

A  gentleman  left  a  trunk  in  a  hackney  coach,  and  the  coachman, 
taking  it,  converted  it  to  his  own  use,  this  was  held  to  be  a  larceny ; 
for  the  coachman  must  have  known  where  he  took  the  gentleman  up, 

^  State  V.  Weston,  9  Conn.  527  ;  People  v.  McGowen,  17  Wend.  460  ;  Contra,  People 
V.  Anderson,  14  Johns.  294.  See  Penna.  v.  Becomb  et  al.,  Addis.  386  ;  Tvler  v.  People, 
1  Bree.  227  ;  Porter  v.  State,  Martin  &  Yerg.  226 ;  State  v.  Jenkins,  2  Tyl.  379  ;  Peonle 
V.  Swan,  1  Parker,  C.  R.  9 ;  State  v.  McCann,  19  Mo.  249  ;  Pritchett  v.  State,  2  Sneed, 
285;  Hunt  v.  Commonwealth,  13  Gratt.  757  ;  People  v.  Kantz,  3  Parker,  C.  R.  129; 
Pyland  v.  State,  4  Sneed,  357.  The  finder  of  lost  goods,  who  takes  possession  of  tliem 
not  intending  to  steal  them,  at  the  time  of  the  original  taking,  is  not  rendered  guilty 
of  larceny  by  any  subsequent  felonious  intention  to  convert  them  to  his  own  use. 
Ransom  v.  State,  22  Conn.  153;  FuUon  r.  State,  8  Eng.  168;  State  !'.  Conway,  18  Mo. 
321.  A  servant  picked  up  a  ring  in  the  house  of  her  mistress,  knowing  it  to  have 
been  accidentally  dropped  by  tlie  latter  and  to  belong  to  her,  and  when  questioned  a 
few  minutes  afterwards  denied  having  taking  it,  and  having  concealed  it,  within  a  few 
weeks  carried  it  to  a  distant  city  and  offered  it  for  sale,  held  larceny.  State  v.  Cum- 
mings,  33  Conn.  260;  Long  v.  State,  11  Fla.  295.  A  person  having  lost  a  carpet-bag 
in  the  street,  employed  another  to  find  it.  The  bag  was  found  but  concealed  by  the 
latter  ;  held  that  the  act  was  not  larceny,  but  only  a  breach  of  trust.  State  r.  Eng- 
land, 8  Jones  (Law)  399.  The  finding  and  conversion  of  property  without  the  knowl- 
edge of  the  owner  is  not  larceny.  State  v.  Taylor,  25  la.  273.  Where  property  (e.  g. 
a  pocket-book  containing  bank-bills)  with  no  mark  about  it  indicating  the  owner,  was 
lost,  and  found  in  the  highway,  and  tliere  was  no  evidence  to  show  that  the  finder  at 
the  time  knew  who  the  owner  was ;  held,  that  he  could  not  be  convicted  of  larceny, 
though  lie  fraudulently,  and  with  intent  to  convert  the  projierty  to  his  own  use,  con- 
cealed the  same  immediately  afterwards.  People  v.  Cogdell,  1  Hill,  94.  See  Law- 
rence V.  State,  1  Humph.  228.    S. 


LARCENY.  849 

and  where  lie  set  him  down,  and  onght  to  have  restored  his  trunk  to 
him.  11.  V.  Lamb,  2  East,  P.  C  664.  The  prosecutor  having  had 
his  hat  knocked  off  in  a  quarrel  with  a  third  person,  the  prisoner 
picked  it  up,  and  carried  it  home.  Being  indicted  for  larceny,  Parke, 
J.,  said,  "  If  a  person  picks  up  a  thing,  and  knows  that  he  can  imme- 
diately find  the  owner,  but  instead  of  restoring  it  to  the  owner  con- 
verts it  to  his  own  use,  this  is  felony."  R.  v.  Pope,  6  C.  &  P.  346,  25 
E.  C.  L. 

In  the  case  of  Merry  v.  Green  (which  was  an  action  of  trespass  for 
false  imprisonment)  a  person  purchased  at  a  public  auction  a  bureau, 
in  which  he  afterwards  discovered  in  a  secret  drawer,  a  purse  contain- 
ing several  sovereigns.  The  contents  of  the  bureau  were  not  known 
to  any  one.  The  purchaser  having  appropriated  the  money  to  his  own 
use,  it  was  held  that  there  was  a  taking  which  amounted  to  a  tres- 
pass, and  that  he  was  guilty  of  larceny ;  it  was  held  also,  that  a 
declaration  by  the  auctioneer,  that  he  sold  all  that  the  bureau  con- 
tained with  the  article  itself,  would  have  giv^en  the  purchaser  a  color- 
able right  to  the  contents,  in  which  case  the  abstraction  of  the  money 
would  not  have  been  felonious.  In  the  course  of  the  argument  in  this 
case,  one  of  the  counsel  asked,  "  If  the  original  possession  is  lawful, 
when  is  the  felony  committed  ?"  Parke,  B.,  interrupting  him,  said, 
"  Why,  suppose  a  person  find  a  cheque  in  the  street,  and  in  the  first 
instance  takes  it  up  merely  to  see  what  it  is;  if  afterwards  he  cashes 
it,  and  appropriates  the  money  to  his  own  use,  that  is  felony ;  though 
he  is  a  mere  finder  till  he  looks  at  it."  In  delivering  the 
judgment  of  the  court,  the  same  learned  baron  said,  "The  old  rule 
in  Coke's  3rd  Inst.  108,  'that  if  one  lose  his  goods,  and  another  find 
them,  though  he  convert  them,  animo  furandi,  to  his  own  use,  is  no  lar- 
ceny,^ has  undergone  in  more  recent  times  some  limitations ;  one  is, 
that  if  the  finder  knows  who  the  owner  of  the  lost  chattel  is,  or  if 
*from  any  mark  upon  it,  or  the  circumstances  under  which  it  i-^^y^ 
is  found,  the  owner  could  be  reasonably  ascertained,  then  the  ■- 
fraudulent  conversion  animo  furandi  constituted  a  larceny.  ...  It 
is  said  that  the  oifence  cannot  be  larceny,  unless  the  taking  would 
be  a  trespass,  and  that  is  true ;  but  if  the  finder,  from  the  circum- 
stances of  the  case,  must  have  known  who  was  the  owner,  and  instead 
of  keeping  the  chattel  by  him,  meant  from  the  first  to  appropriate  it 
to  his  own  use,  he  does  not  acquire  it  by  a  rightful  title,  and  the  tru-e 
owner  might  maintain  trespass  ;  and  it  seems  also,  from  R.  v.  Wynne, 
1  Leach,  413,  that  if,  under  the  like  circumstances,  he  acquire  posses- 
sion and  mean  to  act  honorably,  but  afterwards  alter  his  mind,  and 
open  the  parcel,  with  intent  to  embezzle  the  contents,  such  unlawful 
act  would  render  him  guilty  of  larceny."  Merry  v.  Green,  7  M.  &  W. 
623. 

The  whole  law  with  reference  to  this  subject  was  considered  in  the 
elaborate  and  learned  judgment  of  Parke,  B.,  in  R.  v.  Thurburn,  1 
Den.  C.  C.  R.  387  ;  18  L.  J.,  M.  C.  140.  The  prisoner  found  a  bank- 
note, which  had  been  accidentally  dropped  on  the  high  road.  There 
was  no  name  or  mark  on  it  indicating  ^vho  was  the  owner,  nor  were 
^4 


850  LARCENY. 

there  any  cJreumstanees  attending  the  finrling  whieh  would  enable  him 
to  discover  to  whom  the  note  belonged  when  he  picked  it  up ;  nor  had 
he  any  reason  to  believe  that  the  owner  knew  where  to  find  it  again. 
The  prisoner  meant  to  appropriate  it  to  his  own  use  when  he  picked 
it  up.  The  day  after,  and  before  he  had  disposed  of  it,  he  was  in- 
formed that  the  prosecutor  was  the  owner,  and  had  dropped  it  acci- 
dentally ;  he  then  changed  it,  and  appropriated  the  money  taken  to  his 
own  use.  The  jury  found  that  he  had  reason  to  believe,  and  did  be- 
lieve, it  to  be  the  prosecutor's  property  before  he  thus  changed  the 
note,  and  the  prisoner  was  convicted.  The  court  held  that  the  convic- 
tion was  wrong. 

The  above  case  was  fully  supported  in  the  case  of  R.  v.  Glyde,  37 
L.  J.,  M.  C.  107;  L.  R.  1  C.  C.  R.  139,  where  a  man  found  a  sove- 
reign, and  had  no  means  of  knowing  the  owner,  but  intended  at  the 
time  of  finding  to  keep  the  sovereign  as  against  the  owner,  and  upon 
the  owner  being  found  refused  to  give  up  the  sovereign.  It  was  held 
that  this  was  no  larceny.  See  also  R.  v.  Matthews,  12  Cox,  C.  C.  R. 
489. 

In  R.  V.  Preston,  2  Den.  C.  C.  R.  353 ;  21  L.  J.,  M.  C.  41,  a  case 
of  a  lost  bank-note  found  by  a  person  who  appropriated  to  his  own 
use,  it  was  decided  that  the  jury  are  not  to  be  directed  to  consider  at 
what  time  the  prisoner  after  taking  it  into  his  possession  resolved  to  ap- 
propriate it  to  his  own  use,  but  whether,  at  the  time  he  took  possession 
of  it,  he  knew,  or  had  the  means  of  knowing,  who  the  owner  was,  and 
took  possession  of  the  note  with  intent  to  steal  it ;  for  if  his  original 
possession  of  it  was  an  innocent  one,  no  subsequent  change  of  his 
mind  or  resolution  to  appropriate  to  his  own  use  would  amount  to 
larceny. 

Where  the  prisoner  was  indicted  for  stealing  a  watch,  which  he 
had  found,  and  the  jury  returned  the  following  verdict :  "  We  find 
the  prisoner  not  guilty  of  stealing  the  watch,  but  guilty  of  keeping  it 
in  the  hope  of  reward  from  the  time  he  first  had  the  watch,"  this  was 
held  to  amount  to  a  finding  of  not  guilty.  R.  v.  Yorke,  1  Den.  C.  C. 
R.  335;  18  L.  J.,  M.  C.  38.  So  also  where  a  boy  found  a  cheque 
and  the  prisoner  obtained  it  from  him,  knowing  to  whom  it  belonged, 
and  kept  it  in  the  hope  of  getting  a  reward  for  it.  It  was  held  that 
this  was  not  a  larceny.  R.  v.  Gardner,  32  L.  J.,  M.  C.  35.  Where 
*fi771  *th^  j^^y  found  that  the  notes  were  lost,  that  the  prisoner  did 
J  not  know  the  owner,  but  that  it  was  probable  tliat  he  could  have 
traced  him,  it  was  held  that  the  prisoner  was  not  bound  to  do  that,  and 
that  he  had  been  wrongfully  convicted  of  stealing  the  notes.  R.  v. 
Dixon,  25  L.  J.,  M.  C.  39. 

As  to  what  is  lost  property  was  considered  in  R.  v.  West,  1  Dears. 
C.  C.  R.  402  ;  24  L.  J.,  M.  C.  4.  A  purse  containing  money  was  left 
by  a  purchaser  on  the  prisoner's  stall.  A  third  person  afterwards 
pointed  out  the  purse  to  the  prisoner,  supposing  it  to  be  hers.  She 
put  it  in  her  pocket,  and  afterwards  concealed  it ;  and  on  the  return 
of  the  owner  denied  all  knowledge  of  it.  The  jury  found  that  the 
prisoner  took  up  the  purse  knowing  that  it  was  not  her  own,  and 


LA.ECENY.  -  851 

intending  at  the  time  to  appropriate  it  to  her  own  use,  but  that  she 
did  not  know  who  was  the  owner  at  the  time  she  took  it.  It  was  held, 
under  these  circumstances,  that  the  purse  was  not  lost  property,  and 
that  the  prisoner  was  properly  convicted  of  larceny. 

In  U.  V.  Christopher,  1  Bell,  C.  C.  27  ;  28  L.  J.,  M.  C.  35,  the  court 
distinctly  laid  down  the  principle,  that  in  order  to  convict  the  finder 
of  property  of  larceny,  it  is  essential  that  there  should  be  evidence  of 
an  intention  to  appropriate  the  property,  at  the  time  of  finding.  In 
that  case  the  learned  judge  had  told  the  jury  that  a  felonious  intent 
was  necessary  to  every  larceny,  but  that  the  intent  might  be  inferred 
from  acts  subsequent  to,  as  well  as  immediate  upon,  the  finding,  and 
that  if  the  prisoner,  when  he  discovered  the  owner,  did  not  take 
measures  to  make  restitution,  they  might  from  his  behavior  infer 
such  an  intention.  The  Court  of  Criminal  Appeal,  however,  held 
this  direction  wrong,  as  it  was  calculated  to  lead  the  jury  to  suppose 
that  a  felonious  intent  subsequent  to  the  finding  was  sufficient,  and 
not  merely  that  they  might  look  at  the  subsequent  circumstances, 
with  a  view  of  seeing  what  was  the  intention  at  the  time  of  finding. 

In  R.  V.  Dcaves,  11  Cox,  C.  C.  R.  227  (Irish),  the  prisoner's  child 
found  six  sovereigns  and  brought  them  to  the  prisoner,  who  told  the 
bystanders  she  had  found  one  sovereign  only,  and  offered  to  treat 
them.  The  prisoner  also  found  a  half  sovereign  and  a  bag  at  the  spot 
where  the  child  had  found  the  money.  The  same  evening  the  pris- 
oner gave  a  half  sovereign  to  a  woman  who  came  to  inform  the  pris- 
oner that  the  owner  was  found.  Four  of  the  learned  judges  thought 
there  was  no  evidence  to  show  that  the  prisoner  knew  the  property 
had  an  owner,  while  three  of  them  thought  the  fact  of  concealing  the 
amount  at  the  time  of  finding  and  buying  the  silence  of  those  who 
knew  of  the  matter,  was  evidence  that  the  prisoner  believed  that  the 
owner  could  be  found. 

In  R.  V.  Moore,  L.  &  C.  1  ;  30  L.  J.,  M.  C.  77,  the  prisoner  was 
indicted  for  stealing  a  bank-note.  It  appeared  that  a  customer 
having  made  a  payment  in  the  prisoner's  shop  from  a  purse  in  which 
the  bank-note  was,  dropped  the  note  there.  In  answer  to  questions 
put  to  them,  the  jury  found :  First,  that  the  prisoner  found  the  note 
in  the  shop ;  secondly,  that  the  prisoner  at  the  time  he  picked  up  the 
note  did  not  know,  nor  had  he  the  means  of  knowing  who  the  owner  was  ; 
thirdly,  that  he  afterwards  acquired  a  knowledge  of  who  the  owner 
was,  and  after  that  he  converted  the  note  to  his  own  use ;  fourthly, 
that  the  prisoner  intended  when  he  picked  up  the  note,  to  take  it  to 
his  own  use,  and  deprive  the  owner  of  it,  whoever  he  might  be ; 
fifthly,  that  the  prisoner  believed  at  the  time  he  picked  up  the  note, 
that  the  owner  could  be  found.  The  Court  of  Criminal  Appeal  held 
*that  the  prisoner  was  rightly  convicted  of  larceny,  apparently  r*/^7D 
resting  their  judgment  on  the  fourth  finding,  and  disregard-  ^ 
ing  the  third  finding,  which  is  inconsistent  with  it.  Perhaps  all  that 
the  jury  meant  by  the  third  finding  was  that,  having  appropriated  the 
note  from  the  first,  the  prisoner  did  not,  after  he  discovered  the  owner, 
alter  his  mind  and  intend  to  return  it.     It  is  also  difficult  to  reconcile 


852  LARCENY. 

the  fifth  finding  with  the  second  ;  but  here  again  the  court  probably 
considered  that,  taken  together,  the  two  findings  came  to  this,  that 
there  were  no  marks  apparent  on  the  fiice  of  the  note  indicating  who 
was  the  owner,  but  that  the  prisoner  might,  nevertheless,  if  he  had 
taken  reasonable  pains,  have  ascertained  who  was  the  owner.  At 
any  rate,  there  is  no  indication  that  the  court  had  any  intention  of 
overruling  the  previous  cases.  It  is  perhaps  very  doubtful,  whether 
t'ae  property  was,  strictly  speaking,  lost  property  at  all.  See  R.  v. 
West,  supra. 

Cases  of  cattle  taken  by  mistake,  or  straying  into  a  field  and  sub- 
sequently appropriated,  will  be  found,  ante,  p.  651. 

Larceny  by  the  owner.  It  is  of  course  under  ordinary  circum- 
stances impossible  for  a  man  to  commit  larceny  by  taking  possession 
of  his  own  property.  But  there  is  a  passage  in  the  Year  Book,  7  H. 
6,  45  a,  in  which  it  is  said,  "  that  if  I  bail  to  you  certain  goods  to 
keep,  and  then  retake  them  feloniously,  that  I  should  be  hung  for  it, 
and  yet  the  property  was  in  me :  and  Norton  said  that  this  was  law." 
This  passage,  however,  at  least  requires  qualification.  It  is  repeated 
in  all  the  criminal  treatises,  with  the  addition  that  it  is  felony  if  the 
goods  be  taken  "  with  a  fraudulent  design  to  charge  the  bailee  with 
the  value."  ^  1  Hale,  P.  C.  513,  514;  Foster,  123;  2  East,  P.  C. 
558  ;  4  Bl.  Com.  331.  In  P.  v.  Wilkinson,  Puss.  &  Ry.  470,  it 
appeared  that  the  prosecutors  were  lightermen,  and  were  employed 
by  one  C,  a  merchant,  to  pass  nux  vomica  through  the  custom-house. 
The  prosecutors  entered  it  for  a  vessel  about  to  sail,  then  lying  in 
the  London  Docks,  and  having  done  what  was  necessary,  delivered 
back  the  cocket-bill  and  warrants  to  C,  and  joined  with  C.  in  a  bond 
to  government  to  export  these  goods.  The  prosecutors  then  em- 
ployed the  prisoners  to  convey  the  goods  to  the  ship,  and  lent  them 
one  of  their  lighters  for  the  purpose.  The  prisoner  W.  accordingly 
took  the  nux  vomica  on  board  the  lighter,  but  instead  of  delivering 
it  on  board  the  ship,  he,  in  company  with  and  assisted  by  the  other 
prisoner,  M.,  emptied  the  bags  and  refilled  them  with  cinders ;  the 
nux  vomica  was  then  sent  by  them  to  London,  and  the  bags  of 
cinders  delivered  on  board  as  and  for  the  nux  vomica.  The  prisoners 
were  indicted  for  stealing  nux  vomica,  the  property  of  the  prosecutors^ 
but  it  appeared  at  the  trial  that  it  was  really  the  property  of  the 
prisoner  M.,  and  that  C.  had  only  lent  his  name  to  facilitate  the  pass- 
ing of  the  goods  at  the  custom-house.  It  was  also  j)roved  that  the 
object  of  the  transaction  was  to  defniud  the  government  of  the 
duty.  The  case  was  considered  by  eleven  judges.  Four  of  them 
thought  that  it  was  no  larceny,  as  there  was  no  intent  to  cheat  the 
prosecutors,  but  only  the  crown.  Seven  of  the  judges  held  it  lar- 
ceny, because  the  prosecutors  had  a  right  to  the  possession  until  the 
goods  reached  the  ship  ;  and  they  had'  also  an  interest  in  that  posses- 

*  A  man  may  steal  his  own  property,  if,  by  taking  it,  it  is  his  intent  to  charge  a 
bailee  with  it.  People  r.  Stone,  16  Cal.  369';  People  v.  Thompson,  34  Cal.  671.  Contra, 
Commonwealth  v.  Tobin,  2  Brewster,  570.     &. 


LARCENY.  853 

sion,  and  the  intent  to  depriv^e  them  of  their  possession  wrongfully 
and  against  their  will  was  a  felonious  intent  as  against  them,  beeause 
it  exposed  them  to  a  suit  upon  the  bond.  In  the  opinion  of  part  of 
*the  judges  this  would  have  been  larceny,  although  there  had  r^r.jQ 
been  no  felonious  intent  against  the  prosecutors,  but  only  an  L 
intontiou  to  defraud  the  crown. 

It  may  be  doubted  whether  the  law  has  not  been  somewhat  distorted 
in  this  case  in  order  to  punish  a  flagrant  fraud.  If  the  prisoner, 
who  was  the  true  owner  of  the  goods,  had  demanded  them,  the 
prosecutors  could  scarcely  have  refused  to  deliver  them  to  him  ;  so 
that  the  decision  at  least  comes  to  this,  that  the  prisoner  obtaining 
possession  of  his  OAvn  goods,  to  which  possession  he  has  an  unde- 
niable right,  by  a  false  pretence,  Avith  intent  to  defraud,  is  guilty 
of  larceny. 

There  might  be  a  difference  in  cases  where  the  bailee  has  a  right 
to  retain  the  property  as  a  pledge  or  security,  as  in  that  case  he  has 
more  than  the  bare  possession ;  he  is  Mdiat  is  called  a  special 
froperty  in  the  goods ;  but  it  is  extremely  difficult  to  reconcile  even 
this  case  with  any  accurate  view  of  the  offence  of  larceny  ;  and, 
moreover,'the  case  of  R.  v.  Wilkinson  stands  almost,  if  not  quite, 
alone. 

Larceny  by  part  owners.  As  with  owners  so  with  part  owners, 
a  larceny  cannot  in  general  be  committed  of  the  goods  which  they 
have  in  common,  for  one  part  owner  taking  the  whole  only  does  that 
which  by  law  he  is  permitted  to  do.^  Hale,  P.  C.  513.  This,  upon 
principle  of  common  law,  would  not  apply  to  a  larceny  of  the  goods 
of  a  corporation  by  a  member,  because  an  individual  member  has  no 
riglit  of  property  or  possession  in  the  goods  of  the  corporation  ;  and 
it  might  be  doubtful  whether  it  applied  where  by  mutual  arrange- 
ment the  part  owner  had  no  right  to  the  possession  of  the  goods, 
or  when  it  was  clear  that  there  was  an  intention  by  the  part  owner 
to  deprive  his  partners  entirely  of  their  property  ;  the  passage  in 
Hale  means  no  more  than  that  a  part  owner,  in  the  absence  of  any 
arrangement  to  the  contrary,  may  assume  the  entire  possession  with- 
out committing  a  trespass.  The  state  of  the  law  has  now,  however, 
been  materially  altered  by  the  31  &  32  Vict.  c.  IIG,  s.  l,ante,  p.  644. 
It  has  been  held  that  that  enactment  d  >ns  not  apply  to  a  receiving  of 
goods  stolen  bv  a  partner.  R.  v.  Smith,  L.  R.  1  C.  C.  R.  266 ;  39 
L.J.,M.C.  112. 

In  R.  V.  Bramley,  Russ.  &  Ry.  478,  the  prisoner  was  indicted  for 
burglary.  It  appeared  that  she  was  a  member  of  a  friendly  society, 
and  that  the  money  of  the  society  was  kept  in  a  box  at  the  house  of 
T.  N.  She  broke  into  the  house  and  carried  off  the  box.  In  the 
indictment  the  property  was  laid  in  one  count  as  belonging  to  T.  N.; 

*  One  entitled  to  receive  a  sliare  of  a  crop  for  his  services,  is  not  joint-tenant  or  ten- 
ant in  common  with  his  employer,  and  commits  larceny  in  stealing  a  part.  State  v. 
Gay,  1  Hill,  364.  On  an  indictment  for  stealing  the  goods  of  A.  and  B.,  evidence  that 
some  belonged  to  A.  and  some  to  B.  will  not  do.     State  o.  liyau,  4  McC.  Ifc).     S, 


854  LARCENY. 

and  in  the  other  as  belonging  to  the  three  stewardesses  of  the  so- 
ciety. The  question  reserved  was,  whether,  considering  the  situa- 
tion the  prisoner  stood  in  with  respect  to  the  property,  the  convic- 
tion was  proper ;  and  ten  judges  were  clear  that  as  T.  N.  was  respon- 
sible/or the  loss  of  the  property  the  conviction  was  right.  In  the  case 
of  R.  V.  Webster,  31  L.  J.,  M.  C.  17,  the  same  point  arose  as  in  that 
of  R.  V.  Braraley.  There  H.  was  the  sole  manager  of  the  business 
of  a  friendly  society,  and,  as  such,  carried  on  a  shop,  in  the  profit  and 
loss  of  which  all  the  members  shared.  H.  was  responsible  for  all  the 
moneys  of  the  society  coming  into  his  possession.  The  prisoner 
was  also  a  member  of  the  society,  and  assisted  H.  in  the  manage- 
ment of  the  shop.  On  one  occasion  the  prisoner  had  taken  some 
sovereigns  from  the  till  and  appropriated  them.  It  was  held  that 
the  prisoner  might  be  convicted  on  an  indictment  laying  the  money 
♦Asm  *^  *^^^  property  of  H.  alone.  See  also  R.  v.  Burgess,  L.  &  C. 
"J  299  ;  32  L.  J.,  M.  C.  185.  The  prisoner  was  an  officer  of  a 
friendly  society,  some  of  whose  rules  were  in  restraint  of  trade,  but  it 
was  held  that  as  the  rules  were  not  criminal,  the  society  was  entitled 
to  the  protection  of  the  criminal  law,  and  that  the  prisoner  who  had 
fraudulently  appropriated  the  funds  of  the  society,  was  guilty  of  em- 
bezzlement.    R.  V.  Stainer,  L.  R.,  1  C.  C.  R.  230. 

With  regard  to  friendly  and  other  societies,  the  difficulty  is  met  by 
the  diffi^rent  statutes  mentioned,  supra,  p.  646.  The  effect  of  this 
seems  to  be  to  vest  the  property  in  the  trustees  as  against  the  members 
of  the  society.  R.  v.  Cain,  2  Moo.  C.  C.  204.  See  also  7  Geo.  4,  c. 
64,  s.  14,  sitpm,  p.  644. 

In  cases  of  partnerships  not  proved  to  be  incorporated,  it  is  suffi- 
cient to  state  that  the  property  is  the  property  of  one  of  the  partners 
by  name,  and  others.  See  7  Geo.  4,  c.  64,  s.  14,  and  31  &  32  Viet, 
c.  116,  s.  1,  ante,  p.  644.  As  to  incorporated  companies,  see  post,  p. 
690. 

A  Bible  had  been  given  to  a  society  of  Wesleyan  dissenters,  and 
was  bound  at  the  expense  of  the  society.  No  trust  deed  was  produced. 
The  Bible  having  been  stolen,  the  indictment  charged  the  property  to 
be  in  A.  and  others.  A.  was  a  trustee  of  the  chapel  and  a  member  of 
the  society.  Parke,  J.,  held  the  indictment  right.  R.  v.  Boulton,  5 
C.  &  P.  537,  24  E.  C.  L.  It  is  not  requisite  that  a  strict  legal  part- 
nership should  exist.  Where  C.  and  D.  carried  on  business  in  partner- 
ship, and  the  widow  of  C,  upon  his  death,  without  taking  out  admin- 
istration, acted  as  partner,  and  the  stock  was  afterwards  divided  be- 
tween her  and  the  surviving  partner,  but  before  the  division,  part  of 
the  stock  was  stolen  ;  it  was  held  that  the  goods  were  properly  de- 
scribed as  the  joint  property  of  the  surviving  partner  and  the  widow, 
upon  an  objection,  that  the  children  of  C.  ought  to  have  been  joined, 
or  the  goods  described  as  the  property  of  the  surviving  partner  and  the 
ordinary,  no  administration  having  been  taken  out.  R.  v.  Gabey, 
Russ.  &  R.  178.  And  where  a  father  and  son  took  a  farm  on  tiieir 
joint  account,  and  kept  a  stock  of  sheep,  their  joint  property,  and  upon 
the  death  of  the  son,  the  father  carried  on  the  business  for  the  joint 


LAECENY.  855 

benefit  of  himself  and  his  son's  children,  who  were  infants  ;  it  was 
held,  upon  an  indictment  for  stealing  sheep  bred  from  the  joint  stock, 
some  before  and  some  after  the  death  of  the  son,  that  the  property  was 
well  laid  in  the  father  and  his  son's  children.  R.  v.  Scott,  Russ.  &  R. 
13  ;  2  East,  P.  C.  655. 

By  the  1  &  2  Vict.  c.  96,  s.  1,  made  perpetual  by  the  5  &  6  Vict, 
c.  85  {vide  supra,  p.  644),  in  all  cases  of  banking  co-partnerships 
under  7  Geo.  4,  c.  46,  the  members  are  liable  for  larceny,  embez- 
zlement, and  other  criminal  appropriation  of  the  goods  of  the  com- 
pany, in  the  same  way  as  if  they  were  not  members  of  the  company. 
See  Grant,  Law  of  Bankers,  p.  601.  There  does  not,  however, 
seem  to  be  any  analogous  provision  with  reference  to  banks  formed 
under  subsequent  statutes.  If,  however,  they  be  corporate  bodies, 
there  would  probably  be  no  difficulty  with  regard  to  them  for  the 
reason  mentioned  above. 

In  an  indictment  for  larceny  from  a  banking  company  consisting 
of  more  than  twenty  persons,  the  property  of  the  goods  stolen  Avas 
laid  in  the  public  officer.  Upon  failure  of  proof  of  the  appointment 
of  the  public  officer  and  of  the  registration  of  the  company,  an  amend- 
ment was  asked  for,  and  made,  stating  the  property  to  be  in  "  W. 
*and  others,"  it  being  proved  that  W.  was  one  of  the  members  r^fjpo-i 
of  the  company.  It  was  held  by  the  Court  of  Criminal  Ap-  L 
peal  that,  under  the  7  Geo.  4,  c.  64,  s.  14,  the  allegation  of  ownersliip, 
as  amended,  was  right ;  and  that  the  7  Geo.  4,  c,  46,  s.  9,  did  not  make 
it  absolutely  imperative  that  the  property  belonging  to  a  banking  com- 
pany should  be  laid  in  their  public  officer.  R.  v.  Pritchard,  1  L.  & 
C.  34 ;  30  L.  J.,  M.  C.  169. 

Larceny  by  wife.  Very  akin  to  the  case  of  larceny  by  part  own- 
ers was  that  of  larceny  by  a  wife.  By  the  common  law  if  a  wife  took 
goods  of  which  the  husband  was  the  joint  or  sole  owner,  the  taking 
was  not  larceny,  because  they  were  in  law  but  one  person,  and  the 
wife  had  a  kind  of  interest  in  the  goods.  Hawk.  P.  C.  b.  1,  c.  33,  s.  19. 
Therefore,  where  the  wife  of  a  member  of  a  friendly  society  stole  money 
belonging  to  the  society,  lodged  in  a  box  in  her  husband's  custody,  under 
the  lock  of  the  stewards  of  the  society,  it  was  held  by  the  judges  not 
to  be  larceny,  the  property  being  laid  in  the  husband.  R.  v.  Willis,  1 
Moody,  C.  C.  375.  But  where  the  prisoner,  a  married  woman,  was 
intrusted  with  goods  and  she  stole  them,  the  husband  being  entirely 
innocent,  it  was  held  that  she  was  guilty  of  either  simple  larceny  or 
larceny  as  a  bailee.     R.  v.  Robson,  L.  &  C.  93. 

Whether,  where  a  stranger  and  the  wife  jointly  stole  the  husband's 
propertv,  it  was  larceny  in  the  stranger,  was  the  subject  of  contradic- 
tory decisions.  R.  v.  Clark,  O.  B.  1818,  1  Moo.  C.  C.  376  (n);  R.  v. 
Tolfree,  1  Moody,  C.  C.  243.  In  R.  v.  Rosenberg,  1  C.  &  K.  233, 
47  E.  C.  L.,  in  reply  to  a  remark  from  counsel,  that  there  is  a  passage 
in  Dalton's  Justice  as  to  the  delivery  of  the  husband's  goods  by  the 
wife  to  the  adulterer  constituting  felony  in  him,  Parke,  B.,  said,  "  If 
that  question  arose,  I  should  reserve  it  for  the  opinion  of  the  judges.'* 


856  LARCENY. 

The  point  has  been  twice  reserved  for  the  opinion  of  the  Court  of 
Criminal  Appeal.  In  R.  v.  Thompson,  1  Den.  C.  C.  R.  549,  the  pris- 
oner went  away  with  the  prosecutor's  wife,  and  lived  with  her  at  Birm- 
ingham as  man  and  wife ;  they  took  with  them  from  the  prosecutor's 
house  several  articles  belonging  to  him,  which  were  used  in  their  house 
at  Birmingham.  The  chairman  of  quarter  sessions  directed  the  jury 
to  find  the  prisoner  guilty,  if  they  came  to  the  conclusion  either  that 
the  prisoner,  going  away  with  the  prosecutor's  wife  for  the  purpose  of 
an  adulterous  intercourse,  was  engaged  jointly  with  her  in  taking  the 
goods  ;  or,  secondly,  that  not  being  a  party  to  the  original  taking  or 
removal,  the  prisoner,  after  arriving  at  Birmingham,  appropriated  any 
part  of  the  goods  to  his  own  use.  The  jury  found  the  prisoner  guilty ; 
adding,  that  they  did  so  on  the  ground  that  there  was  a  joint  taking 
by  the  prisoner  and  the  prosecutor's  wife  ;  and  the  court  were  unani- 
mously of  opinion  that  the  conviction  was  right.^  In  R.  v.  Feather- 
stone,  1  Dears.  C.  C.  R.  369,  23  L.  J.,  M.  C.  127,  the  prosecutor's 
wife  had  taken  from  his  bedroom  thirty-five  sovereigns,  and  on  leav- 
ing the  house,  called  out  to  the  prisoner,  who  was  in  a  lower  room  of 
the  house,  "  George,  it  is  all  right,  come  on."  The  prisoner  left  a  few 
minutes  afterwards,  and  he  and  the  prosecutor's  wife  were  traced  to  a  pub- 
lic-house, where  they  passed  the  night  together.  When  taken  into  cus- 
tody, the  prisoner  had  twenty -two  sovereigns  upon  him.  The  jury  found 
the  prisoner  guilty,  stating,  that  they  did  so  "on  the  ground  that  he 
received  the  sovereigns  from  the  wife,  and  that  she  took  them 
*ftS91  *without  the  authority  of  her  husband."  The  court  held  that 
-'  the  conviction  was  right.  "The  general  rule,"  said  Campbell, 
C.  J.,  in  giving  judgment,  "  is,  that  a  wife  cannot  be  convicted  of  lar- 
ceny for  stealing  the  goods  of  her  husband.  It  is  no  larceny  in  her 
to  carry  away  her  husband's  goods,  as  husband  and  wife  are  one.  But 
the  law  has  properly  qualified  that  general  rule  by  saying,  that  if  a 
wife  commit  adultery,  and  then  steal  the  goods  of  her  husband  with 
the  adulterer,  she  has  determined  her  quality  of  wife,  and  is  no  longer 
looked  upon  as  having  any  property  in  the  goods,  and  the  person  who 
assists  her  is  guilty  of  larceny.  I  think  the  case  of  the  prisoner  must 
be  considered  in  the  same  light  as  if  he  had  taken  the  goods  himself. 
This  is  not  the  case  of  a  receiving  of  the  goods  from  the  wife,  but  the 
prisoner  is  supposed  actually  to  have  assisted  her  in  taking  them." 
The  dictum  of  Lord  Campbell  (supra),  "  that  adultery  determined  the 
quality  of  wife,"  was  considered  misleading,  as  tending  to  show  an  ex- 
ception to  the  general  rule  that  a  wife  cannot  be  convicted  of  stealing 
the  goods  of  her  husband.  It  seems  that  the  question  whether  the  wife 
had  no  authority  from  the  husband  to  take  the  goods  is  one  for  the 
jury,  and  may  or  may  not  be  inferred  from  the  fact  of  her  having  com- 
mitted adultery.  R.  v.  Kenny,  infr'a.  "It  is  said  in  Russell  on 
Crimes,  148,  5th  ed.,  'If  the  wife  steal  the  goods  of  her  husband,  and 
deliver  them  to  B.,  who,  knowing  it,  carries  them  away,  B.  being  the 
adulterer  of  the  wife,  this,  according  to  a  very  good  opinion,  would  be 
felony  in  B.,  for  in  such  case  no  consent  of  the  husband  can  be  pre- 
'  People  V.  Schuyler,  6  Cowerij  572.    S. 


LARCENY.  857 

sumed.'  That  is  this  very  case.  The  prisoner  was  tlie  adulterer  of  the 
wife,  and  knew  that  the  goods  were  carried  away  without  the  consent  of 
the  husband.  This  case  is  within  the  express  authority  of  the  rule 
which  is  first  laid  down  in  Dalton,  c.  104,  p.  268,  and  to  be  found  in 
every  book  on  the  criminal  law."  It  is  the  same  whether  the  adultery 
be  actually  committed  or  only  intended.  R.  v,  Tollett,  C.  &  Mar.  112; 
R.  V.  Thompson,  supra.  And  the  fact  that  the  man  was  in  the  hus- 
band's service,  and  acted  under  the  wife's  directions  in  removing  the 
property,  is  no  answer  to  a  charge  of  stealing.  R.  v.  Mutters,  L.  &  C. 
511  ;  34  L.  J.,  M.  C.  54.  But  the  male  prisoner  cannot  be  convicted 
of  stealing  the  husband's  money  unless  he  be  proved  to  have  taken  some 
active  part  in  removing  the  goods  or  spending  the  money.  R.  v. 
Taylor,  12  Cox,  C.  C.  627.  If  the  wife  and  the  adulterer  take  away 
only  the  wife's  wearing  apparel,  it  is  not  larceny.  R,  v.  Fitch,  Dears. 
&  B.  C.  C.  187  ;  26  L.  J.,  M.  C.  169.  Formerly  if  there  was  no  evi- 
dence that  an  adultery  had  been  committed  or  intended,  then  a  ques- 
tion arose  \vhether  a  stranger  who  took  the  goods  of  the  husband  was 
exonerated  by  the  wife  being  privy  and  consenting  thereto.  But  if  the 
wife  were  the  principal  in  the  transaction,  and  took  the  goods  herself,  a 
stranger  could  not  be  convicted  as  accessory,  this  being  no  felony  in  the 
principal.  R.  v.  Avery,  1  Bell,  C.  C.  150  ;  28  L.  J.,  M.  C.  27.  But 
this  is  not  the  law,  see  supra.  Where  there  was  no  evidence  of  a  tak- 
ing of  the  goods  by  any  one  other  than  the  wife,  it  was  held,  under  the 
old  law,  that  the  prisoner  could  not  be  convicted  of  receiving  the  prop- 
erty, knowing  it  to  have  been  stolen,  though  he  was  found  with  the 
wife  in  Ireland  in  manual  possession  of  some  of  the  husband's  prop- 
erty, and  it  was  also  held  that  it  was  immaterial  whether  the  wife 
had  committed  adultery  or  not.  R.  v.  Kenny,  L.  R.  2  Q.  B.  D.  307 ; 
46  L.  J.,  M.  C.  156,  where  the  case  is  more  fully  reported.  The 
authorities  on  this  subject  are  collected  and  the  history  of  the  law 
*relating  to  it  is  traced  in  a  note  to  R.  v.  Mutters,  L.  &  C.  r*/^Qo 
517-519.  There  must  be  a  joint  possession  within  the  juris-  L 
diction  of  the  court  in  order  to  convict  the  male  prisoner  of  larceny 
within  that  jurisdiction.     R.  v.  Prince,  11  Cox,  C.  C.  145. 

A  change,  however,  has  now  taken  place  in  the  law  upon  this  sub- 
ject in  certain  cases,  for  the  effect  of  sects.  12  &  16  of  the  Married 
Women's  Property  Act,  1882,  infra,  seems  to  be  that  a  husband  may 
prosecute  his  wife  for  any  offence  against  his  property  if  she  is  living 
apart  (say  malicious  injuries  or  forgery) ;  but  if  they  are  living  together 
he  can  only  prosecute  her  if  she  wrongfully  takes  any  of  his  property 
when  leaving  or  deserting  or  about  to  leave  or  desert  him.  Even 
where  they  are  living  apart  he  cannot  prosecute  her  for  any  act  done 
by  her  when  they  were  living  together,  unless  such  property  were 
wrongfully  taken  by  her  when  she  was  leaving  or  deserting  or  about 
to  leave  or  desert  him.  It  should  seem  that  whatever  else  these  sec- 
tions mean  the  case  so  frequently  arising  of  a  wife  taking  her  hus- 
band's goods  and  running  off  with  them  is  clearly  met,  and  moreover 
that  if  she  ran  away  with  an  avowterer,  as  she  can  be  found  guilty 
now  of  stealing,  so  the  avowterer  may  be  found  guilty  of  receiving, 


858  LARCENY. 

or  of  jointly  stealing  according  to  the  facts.  There  is  no  definition  of 
the  words  "leaving"  and  "deserting;"  and  it  is  doubtful  whether 
they  mean  anything  different  or  the  same  thing.  Probably  the  word 
"leaving"  has  the  wider  meaning,  though  it  must  be  taken  with 
some  limitation.  The  present  editor  feels  so  uncertain  as  to  the  pre- 
cise meaning  of  sects.  12  &  16  that  he  can  only  offer  the  above  as 
a  possible  interpretation  of  the  law,  and  set  out  the  sections  in 
full  :— 

By  sect.  12,  "Every  woman,  whether  married  before  or  after  this 
Act,  shall  have  in  her  own  name  against  all  persons  whomsoever,  in- 
cluding her  husband,  the  same  civil  remedies,  and  also  (subject,  as 
regards  her  husband,  to  the  proviso  hereinafter  contained)  the  same 
remedies  and  redress  by  way  of  criminal  proceedings  for  the  protec- 
tion and  security  of  her  own  separate  property,  as  if  such  property 
belonged  to  her  as  a  feme  sole,  but,  except  as  aforesaid,  no  husband  or 
wife  shall  be  entitled  to  sue  the  other  for  a  tort.  In  any  indictment 
or  other  proceeding  under  this  section  it  shall  be  sufficient  to  allege 
such  property  to  be  her  property  ;  and  in  any  proceedings  under  this 
section  a  husband  or  wife  shall  be  competent  to  give  evidence  against 
each  other,  any  statute  or  rule  of  law  to  the  contrary  notwithstand- 
ing. Provided  always,  that  no  criminal  proceeding  shall  be  taken  by 
any  wife  against  her  husband  by  virtue  of  this  Act  while  they  are 
living  together,  as  to  or  concerning  any  property  claimed  by  her,  nor 
while  they  are  living  apart,  as  to  or  concerning  any  act  done  by  the 
husband  while  they  were  living  together,  concerning  property  claimed 
by  the  wife,  unless  such  property  shall  have  been  wrongfully  taken 
by  the  husband  when  leaving  or  deserting  or  about  to  leave  or  desert 
his  wife." 

By  sect.  16,  "A  wife  doing  any  act  with  respect  to  any  property  of 
her  husband,  which  if  done  by  the  husband  with  respect  to  the  prop- 
erty of  the  wife  would  make  the  husband  liable  to  criminal  proceed- 
ings by  the  wife  under  this  Act,  shall  in  like  manner  be  liable  to 
criminal  proceedings  by  her  husband." 

It  has  been  held,  notwithstanding  the  above  sections,  that  the  hus- 
band is  not  a  competent  witness  against  the  wife  upon  a  charge  of 
stealing  the  husband's  goods.  K.  v.  Brittleton,  12  Q.  B.  D.  266  ;  s.  1 
of  the  47  &  48  Vict.  c.  14  (see  the  section,  supra). 

*(iAdl  *Larceny  by  husband.  Formerly  the  wife  not  having  sepa- 
J  rate  property,  and  being  with  the  husband  one  person  in  the  eye 
of  the  law,  the  husband  could  not  be  convicted  of  stealing  the  wife's 
goods.  But  by  sect.  12  of  the  Married  Women's  Property  Act,  1882, 
supra,  p.  683,  the  property  of  the  wife  is  protected  from  the  injurious 
acts  of  all  persons  (including  her  husband)  as  if  she  were  a  feme  sole, 
provided  that  the  wife  cannot  take  criminal  proceedings  against  the 
husband  unless  they  are  living  apart,  in  which  case  it  would  seem  she 
can  take  any  criminal  proceedings  as  to  or  concerning  any  of  her 
property  except  for  any  act  done  while  living  together,  and  she  can 
prosecute  him  for  "  taking  "  her  property,  i.  e.,  for  larceny  (if  they  are 


LARCENY.  859 

living  apart)  committed  when  leaving  or  deserting  or  about  to  leave  or 
desert. 

Distinction  between  larceny,  embezzlement,  and  false  pretences. 
The  cases  ^vhich  cxj)laincd  the  distinction  between  larceny  and  embez- 
zlement have  already  been  stated,  ante,  pp.  472  and  668.  It  must 
be  borne  in  mind  that,  though  by  the  24  &  25  Vict.  c.  96,  s.  72, 
supra,  p.  643,  a  i)nsoner,  on  an  indictment  for  larceny,  may  be  found 
guilty  of  embezzlement,  and  on  an  indictment  for  embezzlement  may 
be  found  guilty  of  larceny,  yet  the  verdict  must  l)e  found  according 
to  the  facts,  and  a  prisoner  cannot  be  legally  convicted  of  one  of  these 
offences  on  facts  which  constitute  the  other.  R.  v.  Garbutt,  ante,  p. 
472. 

If  the  prisoner  be  indicted  for  obtaining  money  or  goods  by  false 
pretences,  and  the  offence  turn  out  to  be  larceny,  the  prisoner  is  not 
entitled  to  be  acquitted  of  the  misdemeanor;  so  that  there  is  no  diffi- 
culty in  this  ease  analogous  to  that  wliich  was  the  subject  of  decision 
in  R.  V.  Garbutt,  supra,  but,  at  the  same  time,  on  an  indictment  for 
false  pretences,  the  false  pretences  must  be  proved  as  laid  in  the  in- 
dictment, see  per  Crompton,  J.,  R.  v.  Bulmer,  L.  &  C.  482.  If, 
however,  the  prisoner  be  indicted  for  larceny,  and  it  appears  that 
the  offence  was  really  an  obtaining  by  false  pretences,  the  prisoner 
must  be  acquitted.  It  is  necessary,  therefore,  to  distinguish  the 
offences.  The  cases  illustrating  this  distinction  will  be  found  at  pp. 
653,  665.^ 

Proof  of  value.  The  rule  that  evidence  of  some  value  must  be 
given,  for  which  it  is  usual  to  quote  R.  v.  Phipoe,  2  Leach,  680,  has 
been  questioned  by  Parke,  B.,  in  R.  v.  Morris,  9  C.  &  P.  349,  38 
E.  C.  L. ;  at  any  rate,  it  is  said  by  that  learned  judge,  that  it  need  not 
be  of  the  value  of  any  coin  known  to  the  law.  Three  pigs  which  had 
been  bitten  by  a  mad  dog  were  shot  and  buried,  and  were  the  same 
evening  dug  up  by  the  prisoner  and  sold  by  him  for  9^.  3s.  dd.,  it  was 
argued  that  the  pigs  had  been  abandoned,  and  were  of  no  value  to  the 
owner,  but  the  jury  found  that  the  pigs  were  not  abandoned,  and  the 
Court  upheld  the  conviction.  R.  v.  Edwards,  13  Cox,  C.  C.  384. 
Neither  is  it  necessary  that  the  property  should  be  of  value  to  third 
persons,  if  valuable  to  the  owner.  Therefore  a  man  may  be  convicted 
of  stealing  bankers'  reissuable  notes,  which  have  been  paid.^     R.  v. 

'  But  see  People  v.  Dumas,  42  Hun,  (N.  Y.)  80. 

'•' Payne  v.  People,  6  Johns.  103.  Therefore,  in  larceny  of  a  bank-note,  it  must  be 
proved  to  be  genuuie.     State  r.  Tillery,  1  Nott.  &  McC.  9.     S. 

A  variance  in  the  description  of  the  property  stolen  is  fatal.  People  v.  Coon,  45 
Cal.  672.  An  indictment  charged  the  larceny  of  chickens,  the  proof  showed  tliat  hens 
were  stolen,  held  no  variance.  State  r.  Bartlett,  34  La.  An.  1108.  On  an  indictment 
for  the  larceny  of  a  "cast-iron  balance  wheel"  it  is  no  variance  if  the  evidence  is 
that  defendants  broke  it  into  pieces,  to  facilitate  its  removal  and  then  disposed  of  it. 
Gettinger  v.  State,  13  Neb.  308.  Where  the  value  of  the  total  property  stolen  is 
sufficient  to  make  the  theft  a  felony,  the  Slate  need  not  show  on  the  trial  of  one 
jointly  indicted  with  others  how  much  in  value  was  taken  l)y  each.  Clay  v.  State, 
40  Tex.  67.     By  Louisiana  statute  the  character  of  money  alleged  to  be  stolen  need 


860  LARCENY. 

Clarke,  2  Leach,  1037  ;  R.  v.  Ransom,  Id.  1090;  Russ.  &  %.  232.  In 
R.  V.  Walsh,  Russ.  &  Ry.  215,  the  judges  are  reported  to  have  held 
(p.  220)  that  a  cheque  in  the  hands  of  the  drawer  is  of  no  value,  and 
could  not  be  the  subject  of  larceny.  But  where  the  prisoner,  who 
was  employed  by  the  prosecutors  as  an  occasional  clerk,  received  from 
^  -.  *them  a  cheque  on  their  bankers,  payable  to  a  creditor,  for  the 
"  ^^J  purpose  of  giving  it  to  such  creditor,  and  the  prisoner  caused 
the  chcfiue  to  be  presented  by  a  third  party,  and  appropriated  the 
amount  to  his  own  use  :  being  found  guilty  of  stealing  tlie  cheque,  the 
judges  affirmed  the  conviction.  R.  v.  Metcalf,  1  Moo.  C.  C,  433.  See 
tit.  "Written  Instruments." 

In  certain  statutory  felonies,  as  stealing  trees,  etc.,  the  article  stolen 
must  be  proved  to  be  of  a  certain  value,  infra,  tit.  "  Trees."  In  such 
cases  of  course  the  value  must  be  proved.  As  to  allegations  of  value 
in  the  indictment,  see  supra,  pp.  86  and  91. 

Proof  of  ownership — cases  where  it  is  unnecessary  to  allege  or 
prove  ownership.  In  some  cases,  in  consequence  of  the  provisions  of 
certain  statutes,  it  is  unnecessary  either  to  allege  or  prove  the  owner- 
ship of  the  property  stolen,  as  upon  an  indictment  under  the  24  &  25 
Vict.  c.  96,  s.  31,  ante,  p.  533,  in  which  many  of  the  judges  thought 
that  the  right  way  of  laying  the  case  was,  to  allege  the  lead  to  have 
been  fixed  to  a  certain  building,  etc.,  without  stating  the  property  to  be 
in  any  one.  R.  v.  Hickman,  2  East,  P.  C.  593.  So  by  24  &  25  Vict. 
c.  96,  s.  29,  upon  an  indictment  for  stealing  a  will,  etc.,  it  shall  not 
be  necessary  to  allege  that  such  will,  etc.,  is  the  property  of  any  per- 
son ;  and  the  same  with  regard  to  stealing  records,  etc.,  s.  30 ;  see  infra, 
tit.  "  Written  Instruments."  ^ 

not  be  described  in  an  indictment  for  larceny.  State  v.  King,  37  La.  An.  91.  An  in- 
dictment for  larceny  of  three  articles  is  sustained  by  proof  of  one  only.  State  v. 
Evans,  23  S.  C.  209.  Where  a  statute  makes  it  larceny  to  appropriate  or  convert  to 
one's  use  a  railroad  ticket  or  pass,  the  value  of  such  ticket  or  pass  is  immaterial,  and 
a  conviction  may  be  sustained  v/ithout  averring  or  proving  the  value  thereof.  The 
crime  is  complete,  when  the  person  steals  or  embezzles  the  coupon,  railroad  ticket  or 
pass.     McDaniels  v.  People,  118  111.  301. 

^  To  sustain  an  indictment  for  larceny,  proof  must  be  adduced  that  the  goods 
alleged  to  be  stolen  are  the  absolute  or  special  property  of  the  person  named  as 
owner  in  the  indictment,  and  that  a  felony  has  been  committed.  State  v.  Furlong,  19 
Me.  225.  If  the  goods  of  A.  be  stolen  by  B.,  and  afterwards  they  be  stolen  from  B. 
by  C,  an  indictment  against  the  latter  may  allege  the  title  to  be  in  either  A.  or  B.,  at 
the  election  of  the  pleader.  Ward  v.  People,  3  Hill,  395  ;  6  Hill,  144.  See  also  Sta,te 
V.  Furlong,  19  Me.  225 ;  Commonwealth  v.  Doane,  1  Cush.  5.     S. 

Where  the  proof  adduced  shows  the  property  to  have  been  in  a  person  different 
from  the  one  alleged  in  the  indictment,  it  is  a  fatal  variance.  Case  v.  State,  12  Tex. 
App.  228.  A  failure  to  set  forth  tlie  Cliristian  name  of  the  owner  in  full  is  not  such 
a  variance  as  to  entitle  the  defendant  to  an  acquittal.  Thompson  v.  State,  48  Ala.  165. 
Nor  does  the  omission  of  a  word  in  tlie  description  of  ownership  in  the  indictment 
render  it  fatally  defective.  Abernathy  v.  State,  78  Ala.  411.  But  proof  that  the 
property  stolen  belongs  to  the  wife  of  the  person  named  in  the  indictment,  acquired 
by  gift  after  marriage,  will  not  sustain  a  verdict  of  guilty.  Stevens  v.  State,  44  Ind. 
469.  Where  a  larceny  from  the  person  is  clearly  proved  the  person  from  whom  the 
property  was  taken  need  not  be  produced  at  the  trial.  People  v.  Wiggins,  28  Hun, 
(N.  Y.)  308,  s.  c.  92  N.  Y.  656.  Contra,  State  v.  Moon,  41  Wis.  684,  where  want  of 
consent  is  to  be  proved.    Where  the  question  of  ownership  was  in  issue,  the  State 


LARCENY.  861 

Proof  of  the  ownership — intermediate  tortious  taking.    It  is  an 

established  and  well-known  rule  of  law,  that  the  possession  of  the 
true  owner  of  goods  cannot  be  divested  by  a  tortious  taking ;  and, 
therefore,  if  a  person  unlawfully  take  my  goods,  and  a  second  person 
take  them  again  from  him,  I  may,  if  the  goods  were  feloniously  taken, 
indict  such  second  person  for  the  theft,  and  allege  in  the  indictment 
that  the  goods  are  my  property,  because  these  acts  of  theft  do  not 
change  the  possession  of  the  true  owner.  Per  Gould,  J.,  delivering 
the  opinion  of  the  judges,  R.  v.  Wilkins,  1  Leach,  522.  If  A,,  says 
Lord  Hale,  steal  the  horse  of  B.,  and  after  C.  steal  the  same  horse 
from  A.,  in  this  case  C.  is  a  felon,  both  as  to  A.  and  B.,  for,  by  the 
theft  by  A.,  B.  lost  not  the  property,  nor  in  law  the  possession  of  his 
horse,  and  therefore  C.  may  be  indicted  for  felony  in  taking  the  horse 
of  B.  1  Hale,  P.  C.  507.  But  if  A.  steals  the  horse  of  B.,  and  after- 
wards delivers  it  to  C,  who  was  no  party  to  the  first  stealing,  and  C. 
rides  away  with  it,  animo  fwandi,  yet  C.  is  no  felon  to  B.,  because, 
though  the  horse  was  stolen  from  B.,  yet  it  was  stolen  by  A.,  and  not 
by  C,  for  C.  did  not  take  it,  neither  is  he  a  felon  to  A.,  for  he  had  it 
by  his  delivery.  Id.  The  doctrine  as  to  property  not  being  changed 
by  felony,  holds  also  with  regard  to  property  taken  by  fraud,  for  other- 
wise a  man  might  derive  advantage  from  his  own  wrong.  Per  Gould, 
J,,  1  Leach,  523 ;  Noble  v.  Adams,  7  Taunt.  39,  2  E.  C.  L. ;  Kelby 
V.  Wilson,  Ry.  &  Moo.  N.  P.  C.  178 ;  Irving  v.  Motley,  7  Bingh. 
543,  20  E.  C.  L. 

Proof  of  ownership — of  goods  in  custodia  legis.  Goods  seized 
by  the  sheriff  under  a  fi.  fa.  remain  the  property  of  the  defendant  until 
a  sale.  Lucas  v.  Nockells,  10  Bingh.  182,  25  E.  C.  L.  A  sheriff's  offi- 
cer seized  goods  under  afi.fa.  against  J.  S.,  and  afterwards  stole  part 
of  them.  The  indictment  against  him  described  the  goods  as  the  goods 
of  J.  S.,  upon  which  it  w^as  objected  that  they  were  no  longer  the  goods 
of  *  J.  S.,  and  should  have  been  described  as  the  goods  of  the  sher-  r*po/^ 
iff;  but  upon  the  point  being  reserved,  the  judges  held  that  not-  L 
withstanding  the  seizure,  the  general  property  remained  in  J.  S.,  and 
the  loss  would  fall  upon  him  if  they  did  not  go  to  liquidate  the  debt ; 
that  the  seizure  left  the  debt  as  it  was,  and  that  the  whole  debt  con- 
tinued until  the  goods  were  applied  to  its  discharge.  R.  v.  Eastall,  2 
Russ.  on  Cri.  250,  5th  ed. 

Proof  of  ownership — goods  of  an  adjudged  felon.  The  goods  of 
an  adjudged  felon,  stolen  from  his  house,  in  the  possession  of,  and  ac- 
cupation  of  his  wife,  may  be  described  in  an  indictment  for  larceny  as 
the  goods  of  the  Queen  ;  but  the  house  cannot  be  so  described  without 
office  found.  R.  v.  Whitehead,  2  Moo.  C.  C.  181 ;  9  C.  &  P.  429,  38 
E.  C.  L. 

alleging  that  the  defendant  had  sold  his  interest  in  the  property  before  the  larceny, 
the  alleged  purchaser  should  be  called  as  the  best  evidence  of  the  real  ownersliip. 
Hunter  v.  State,  13  Tex.  App.  16.  An  unrecorded  brand  is  admissible  to  aid  in  proving 
the  identity  of  a  stolen  animal,  the  title  being  established  by  other  testimony.  Poage 
V.  State,  43  Tex.  454 


862  LARCENY. 

Forfeiture  is  now,  however,  abolished,  except  as  to  outlawry.  The 
goods  of  a  "  convict,"  that  is,  of  a  person  under  judgment  of  penal 
servitude  or  death,  Avill  vest  in  the  administrator  of  Ills  estate  appointed 
under  the  33  &  34  Vict.  c.  23,  s.  10. 

Proof  of  ownership — goods  in  possession  of  children.  Clothes  and 
other  necessaries,  provided  for  children  by  their  parents,  are  often 
laid  to  be  the  property  of  the  parents,  especially  where  the  children 
are  of  tender  age  ;  but  it  is  good  either  way.  2  East,  P.  C.  654 ; 
2  Russ.  Cri.  253,  5th  ed.  In  a  case  at  the  Old  Bailey,  in  1701,  it  was 
doubted  whether  the  property  of  a  gold  chain,  which  was  taken  from 
a  child's  neck,  who  had  worn  it  for  four  years,  ought  not  to  be  laid 
to  be  in  the  father.  But  Tanner,  an  ancient  clerk  in  court,  said  that 
it  had  always  been  usual  to  lay  it  to  be  the  goods  of  the  child  in  such 
case,  and  that  many  indictments,  whicli  had  laid  them  to  be  the  prop- 
erty of  the  father,  had  been  ordered  to  be  altered  by  the  judges. 
2  East,  P.  C  654.  Where  a  son,  nineteen  years  of  age,  was  appren- 
ticed to  his  father,  and  in  pursuance  of  the  indentures  of  apprentice- 
ship was  furnished  with  clothes  by  the  father,  it  was  held  that  the 
clothes  were  the  property  of  the  son  exclusively,  and  ought  not  to 
have  been  laid  in  the  indictment  to  be  the  property  of  the  father. 
R.  V.  Forsgate,  1  Leach,  463.  Where  the  prisoner  was  indicted  for 
stealing  a  pair  of  trousers,  the  property  of  J.  Jones,  and  it  appeared 
that  J.  Jones  bought  the  cloth  of  which  the  trousers  were  made,  and 
paid  for  it,  but  the  trousers  were  made  for  his  son  Thomas,  who  was 
seventeen  years  of  age,  and  J.  Jones  stated  that  he  found  clothes  for 
his  son,  who  was  not  his  apprentice,  but  a  laborer  like  himself,  and 
worked  for  the  same  master,  but  at  different  work,  and  lived  with  his 
father  ;  Patteson,  J.,  said,  "  I  think  the  property  is  well  laid.  It  may 
be  laid  in  these  cases  either  in  the  father  or  the  child,  but  the  better 
course  is  to  lay  it  in  the  child."  R.  v.  Hughes,  2  Russ.  Cri.  253,  5th 
ed. ;  Carr.  &  M.  593,  41  E.  C.  L.  In  R.  v.  Green,  Dears.  &  B.  C.  C. 
113,  it  appeared  that  A.  was  a  boy  of  fourteen  years  of  age,  living 
with  and  assisting  his  father ;  that  the  boots  which  the  prisoner  was 
charged  with  stealing  were  the  property  of  the  father,  but  that  at  the 
time  they  were  stolen  A.  had  the  temporary  care  of  the  stall  from 
which  they  were  taken.  It  was  held  that  the  ownership  of  the  goods 
could  not  properly  be  laid  in  A. 

Proof  of  ownership — goods  in  possession  of  bailees.  Any  one  who 
has  a  special  property  in  goods  stolen,  may  lay  them  to  be  his  in  an 
indictment,  as  a  bailee,  pawnee,  lessee  for  years,  carrier,  or  the  like ; 
*fiS7"l  ^(^fo^^^ori,  they  may  be  laid  to  be  the  property  of  the  respect- 
J  ive  owners,  and  the  indictment  is  good  either  way.  But  if  it 
appear  in  evidence  that  the  party,  whose  goods  they  arc  laid  to  be,  had 
neither  the  property  nor  the  possession  (and  for  this  purpose  the  pos- 
session of  a,  feme  covert  or  servant  is,  generally  speaking,  the  possession 
of  the  husband  or  master),  the  prisoner  ought  to  be  acquitted  on  that 


LARCENY.  863 

indictment.  1  Hale,  P.  C.  413 ;  2  East,  P.  C.  652.  Many  cases  have 
been  decided  on  this  principle. 

Goods  stolen  from  a  washerwoman,  who  takes  in  the  linen  of  other 
persons  to  wash,  may  be  laid  to  be  her  property ;  for  persons  of  this 
description  have  a  possessory  property,  and  are  answerable  to  their 
employer,  and  could  all  maintain  an  appeal  of  robbery  or  larceny,  and 
have  restitution.  R.  v.  Packer,  2  East,  P.  C.  653 ;  1  Leach,  357  (n). 
So  an  agister,  who  only  takes  in  sheep  to  agist  for  another,  may  lay 
them  to  be  his  property  ;  for  he  has  the  possession  of  tliem,  and  may 
maintain  trespass  against  any  who  takes  them  away.  R.  v.  Woodward, 
2  East,  P.  C.  653 ;  1  Leach,  357  (n).  A  coach-master  in  whose  coach- 
house a  carriage  is  placed  for  safe  custody,  and  who  is  answerable  for 
it,  may  lay  the  property  in  himself  R.  v.  Taylor,  1  Leach,  356.  So 
where  a  glass  was  stolen  from  a  lady's  chariot,  which  had  been  put  up 
in  a  coach-yard,  at  Chelsea,  while  the  owner  was  at  Ranelagh,  the 
property  was  held  to  be  properly  laid  in  the  master  of  the  yard.  R.  v. 
Statham,  cited  1  Leach,  357.  Goods  at  an  inn,  used  by  a  guest,  when 
stolen,  may  be  laid  to  be  either  the  property  of  the  innkeeper  or  the 
guest.  R.  V.  Todd,  2  East,  P.  C.  653.  Where  the  landlord  of  a  pub- 
lic house  had  the  care  of  a  box  belonging  to  a  benefit  society,  and  by 
the  rules  he  ought  to  have  had  a  key,  but  in  fact  had  none,  and  two 
of  the  stewards  had  each  a  key ;  the  box  being  stolen,  upon  an  indict- 
ment, laying  the  property  in  the  landlord,  Parke,  J.,  held,  that  there 
was  sufficient  evidence  to  go  to  the  jury  of  the  property  being  in  the 
landlord  alone.  R.  v.  Wyraer,  4  C.  &  P.  391,  19  E.  C.  L.  A  house 
was  taken  by  Kyezor,  and  JVIiers,  who  lived  on  his  own  property,  car- 
ried on  the  business  of  a  silversmith  there  for  the  benefit  of  Kyezor 
and  his  family,  but  had  himself  no  share  in  the  profits  and  no  salary, 
but  had  power  to  dispose  of  any  part  of  the  stock,  and  might,  if  he 
pleased,  take  money  from  the  till  as  he  wanted  it.  Miers  sometimes 
bought  goods  for  the  shop,  and  sometimes  Kyezor  did.  Bosanquet, 
J.,  held,  that  Miers  was  a  bailee  of  the  stock,  and  that  the  property 
in  a  watch  stolen  out  of  the  house  might  properly  be  laid  in  him. 
R.  V.  Bird,  9  C.  &  P.  44,*  38  E.  C.  L. 

W^hen  property  is  parted  with  by  a  bailee  under  a  mistake,  his  spe- 
cial property  in  it  is  not  divested  ;  and  if  a  larceny  of  it  be  committed, 
it  mav  well  be  laid  as  the  property  of  such  bailee.  R.  v.  Vincent,  2 
Den.  C.  C.  R.  464. 

Proof  of  ownership — goods  in  possession  of  carriers.  Carriers, 
as  bailees  of  goods,  have  such  a  possession  as  to  render  an  indictment, 

^  In  an  indictment  for  larceny,  proof  that  the  person  alleged  to  have  been  the  owner 
had  a  special  property  in  the  thing,  or  that  he  had  it  to  do  some  act  upon  it,  or  for 
the  purpose  of  conveyance,  or  in  trust  for  the  benefit  of  another,  would  be  sufficient 
to  support  that  allegation  in  the  indictment.  State  v.  Somerville,  21  Me.  14.  AVhere 
leather  has  been  delivered  to  a  person  to  be  manufactured  into  shoes,  the  shoes  may 
be  laid  as  the  property  of  the  manufacturer.  State  v.  Ayer,  3  Fost.  301.  Where  one 
person  has  the  general  and  another  a  special  property  in  a  thing  stolen,  in  the  indict- 
ment the  property  may  be  alleged  to  be  in  either.  Langford  v.  State,  8  Tex.  115; 
People  r.  Smith,  1  Parker,  C.  R.  329 ;  Barrus  v.  People,  18  111.  52.  So  as  to  goods  in 
possession  of  a  captain  of  a  vessel.     Williams's  Case,  1  Eog.  Eec.  29.    S. 


864  LARCENY. 

laying  the  property  in  them,  good.  Supra.  And  so  it  has  been  held 
with  regard  to  the  driver  of  a  stage-coaeh.  The  prisoner  was  indicted 
for  stealing  goods,  the  property  of  one  Markhara.  The  goods  had 
been  sent  by  the  coach  driven  by  Markham,  and  had  been  stolen 
from  the  boot  on  the  road.  The  question  was,  whether  the  goods 
were  properly  laid  to  be  the  property  of  Markham,  who  was  not 
the  owner,  but  only  the  driver  of  the  coach,  there  being  no  con- 
tract between  him  and  the  proprietors  that  he  should  be  liable  for 
*ft8Ql  *anything  stolen,  and  it  not  appearing  that  lie  had  been  guilty 
-I  of  any  laches.  Upon  a  case  reserved,  the  judges  were  of 
opinion  that  the  property  Avas  rightly  laid  in  Markham  ;  for  though 
as  against  his  employers,  he,  as  driver,  had  only  the  bare  charge  of  the 
property  committed  to  him,  and  not  the  legal  possession,  which  re- 
mained in  his  masters,  yet,  as  against  all  the  rest  of  the  world,  he 
must  be  considered  to  have  such  a  special  property  therein  as  would 
support  a  count  charging  them  as  his  goods ;  for  he  had,  in  fact,  the 
possession  of  and  control  over  them  ;  and  they  were  intrusted  to  his 
custody  and  disposal  during  the  journey.  They  said  that  the  law, 
upon  an  indictment  against  the  driver  of  a  stage-coach,  on  the  prose- 
cution of  the  proprietors,  considers  the  driver  to  have  the  bare  charge 
of  the  goods  belonging  to  the  coach  ;  but  on  a  charge  against  any  other 
person  lor  taking  them  tortiously  and  feloniously  out  of  the  driver's 
custody,  he  must  be  considered  as  the  possessor.  R.  v.  Deakin,  2 
Leach,  862,  876  ;  2  East,  P.  C.  653. 

Proof  of  ownership — goods  of  deceased  persons.  Where  a  per- 
son dies  intestate,  and  the  goods  of  the  deceased  are  stolen  before  ad- 
ministration granted,  the  property  must  be  laid  in  the  ordinary ;  but 
if  he  dies,  leaving  a  will,  and  making  executors,  the  property  may  be 
laid  in  them,  though  they  have  not  proved  the  will  ;  and  it  is  not 
necessary  that  the  prosecutor  should  name  himself  ordinary  or  execu- 
tor, because  he  proceeds  on  his  own  possession.*  1  Hale,  P.  C.  514  ; 
2  East,  P.  C.  652.  Where  the  deceased  had  appointed  executors  who 
would  not  prove  the  will,  Bolland,  B.,  and  Coleridge,  J.,  held,  that 
the  property  must  be  laid  in  the  ordinary,  and  not  in  a  person  who, 
after  the  commission  of  the  offence,  but  before  the  indictment,  had 
taken  out  letters  of  administration.  R.  v.  George  Smith,  7  C.  &  P. 
147,  32  E.  C.  L.;  R.  v.  Johnson,  Dears.  <t  B.  340 ;  27  L.  J.,  M.  C. 
52.  There  can  be  no  property  in  a  dead  body,  and  though  a  high 
misdemeanor,  the  stealing  of  it  is  no  felony.  See  p.  445.  A  shroud 
stolen  from  the  corpse  must  be  laid  to  be  the  property  of  the  executors, 
or  of  whoever  else  buried  the  deceased.  So  tlie  coffin  may  be  laid  to 
be  the  goods  of  the  executors.  But  if  it  do  not  appear  who  is  the  per- 
sonal representative  of  the  deceased,  laying  the  goods  to  be  the  goods 
of  a  person  unknown  is  sufficient.  2  East,  P.  C.  652  ;  2  Russ.  Cri. 
256,  5th  cd.  A  knife  was  stolen  from  the  pocket  of  A.  as  he  lay  dead 
on  the  road  in  the  diocese  of  W.     A.'s  last  place  of  abode  was  at  T. 

•  Property  cannot  be  laid  as  belonging  to  a  person  deceased.  State  v,  Davis,  2  Car. 
Law  Repos.  291.    S. 


LAECENY.  865 

in  the  diocese  of  G.,  but  A.'s  father  stated  that  he  believed  his  son  had 
left  T.  to  come  to  live  with  hira,  but  he  did  not  know  whether  his  son 
had  given  up  his  lodgings  at  T.  Patteson,  J.,  held,  that  there  was 
sufficient  proof  to  suj)port  a  count  for  larceny,  laying  the  property  in 
the  Bishop  of  W.     K.  V.  Tippin,  Car.  &  M.  545,  41  PI  C.  L. 

In  some  cases  the  property  of  an  intestate  has  been  held  to  be 
rightly  described  as  being  in  the  party  in  actual  possession,  no  ad- 
ministration having  been  granted.  D.  and  C.  were  partners ;  C 
died  intestate,  leaving  a  widow  and  children.  From  the  time  of  his 
death,  the  widow  acted  as  partner  with  D.,  and  attended  to  the 
business  of  the  shop.  Three  weeks  after  his  death  part  of  the  goods 
were  stolen,  and  were  described  in  the  indictment  as  the  goods  of  D. 
and  the  widow.  It  was  contended  that  the  names  of  the  children,  as 
next  of  kin,  should  have  been  joined,  or  that  the  property  should 
have  been  laid  in  D.  and  the  ordinary  ;  but  Chambre,  J.,  held,  that 
actual  possession,  as  owner,  was  sufficient,  and  the  judges,  on  a  case 
♦reserved,  were  of  the  same  opinion.  R.  v.  Gabey,  Russ.  &  Ry.  r:^p(jQ 
178.  So  where  a  father  and  son  carried  on  business  as  farm-  L 
ers,  and  the  son  died  intestate,  after  which  the  father  carried  on  the 
business  for  the  joint  benefit  of  himself  and  the  son's  next  of  kin, 
some  of  the  sheep  being  stolen,  and  being  laid  as  the  property  of  the 
father  and  next  of  kin,  the  judges,  on  a  case  reserved,  held  the  in- 
dictment right.     R.  V.  Scott,  Russ.  &  Ry.  13. 

The  prisoner  was  charged  with  stealing  a  number  of  articles  laid  as 
the  property  of  the  Bishop  of  Peterborough,  the  county  in  which  the 
things  were  stolen  being  in  that  diocese.  To  prove  the  intestacy  of 
the  person  to  whom  the  property  had  belonged,  it  was  shown  that  an 
unsuccessful  search  had  been  made  for  a  will  in  the  boxes  and  draw- 
ers of  the  deceased,  and  that  no  administration  had  been  taken  out  in 
the  proper  court.  As  to  some  of  the  articles  mentioned  in  the  indict- 
ment, it  was  shown  that  they  were  in  the  possession  of  the  deceased  at 
the  time  of  her  death  ;  but  as  to  the  majority  there  was  no  evidence 
of  this,  but  it  was  shown  that  on  the  day  of  the  funeral  they  were 
taken  hj  the  prisoner  to  the  house  of  a  witness.  The  court,  at 
the  trial,  refused  to  confine  the  case  to  the  things  shown  to  hare 
been  in  the  possession  of  the  deceased  at  the  time  of  her  death, 
and  the  jury  found  the  prisoner  guilty.  It  was  held  that  there 
was  sufficient  evidence  of  the  intestacy  of  the  deceased,  and  that 
the  property  was  in  the  ordinary ;  and  that  the  conviction  was 
right.     R.  V.  Johnson,  Dears.  &  B.  C.  C.  340 ;  27  L.  J.,  M.  C.  52. 

Proof  of  ownership — goods  of  lodgers.  Where  a  room,  and  the 
furniture  in  it,  are  let  to  a  lodger,  he  has  the  sole  right  to  the 
possession,  and  if  the  goods  are  stolen,  it  has  been  held,  in  two 
cases  bv  the  judges,  that  the  ])roperty  must  be  laid  in  the  lodger. 
R.  V.  Belstead,  Russ.  &  Ry.  411  ;  R.  v.  Brunswick,  1  Moo.  C.  C.  26. 

Proof  of  ownership — goods  of  married  women.     Where  goods, 
in  the  possession  of  a  married  woman,  are  stolen,  they  must  not  in 
55 


866  LARCENY. 

general  be  described  as  her  property,  but  as  that  of  her  husband ;  for 
her  possession  is  his  possession.  2  East,  P.  C.  652.  See  K.  v. 
French,  Russ.  &  Ry.  491;  R.  v.  Wilford,  Id.  517,  stated  ante,  p. 
375.  But  where  they  are  the  wife's  separate  property,  under  the  45 
&  46  Vict.  c.  75,  s.  12,  it  is  sufficient  to  allege  the  property  to  be  her 
property.  Where  the  goods  of  a  feme  sole  are  stolen,  and  she  after- 
wards marries,  she  may  be  described  by  her  maiden  name.  R.  v. 
Turner,  1  Leach,  536. 

Proof  of  ownership — goods  of  persons  unknown.  Felony  may 
be  committed  in  stealing  goods,  though  the  owner  is  not  known,  and 
they  may  be  described  in  the  indictment  as  the  goods  of  a  person  to 
the  jurors  unknown ;  and  the  king  is  entitled  to  them.  1  Hale,  P.  C. 
512 ;  2  East,  P.  C.  651.  But  if  the  owner  be  really  known,  an  in- 
dictment alleging  the  goods  to  be  the  property  of  a  person  unknown, 
is  improper.     2  East,  P  C.  651. 

In  prosecutions  for  stealing  the  goods  of  a  person  unknown,  some 
proof  must  be  given  sufficient  to  raise  a  reasonable  presumption  that 
the  taking  was  felonious,  or  invito  domino  ;  it  is  not  enough  that  the 
prisoner  is  unable  to  give  a  good  account  how  he  came  by  the  goods. 
2  East,  P.  C.  651 ;  2  Hale,  P.  C.  290.  An  indictment  for  plundering 
♦ftom  *^  wreck  contained  two  counts :  the  first  count  stated  the 
J  property  in  the  ship  to  be  in  certain  persons  named;  the 
second,  in  persons  unknown.  The  witness  for  the  prosecution  could 
not  recollect  the  Christian  names  of  some  of  the  owners.  The  coun- 
sel for  the  crown  then  relied  on  the  second  count,  but  Richards,  C.  B., 
said,  "  I  think  the  prisoner  must  be  acquitted.  The  owners,  it  appears, 
are  known,  but  the  evidence  is  defective  on  the  point.  How  can  I 
say  that  the  owners  are  unknown  ?"  R.  v.  Robinson,  Holt's  N.  P.  C 
596 ;  2  Russ.  Cri.  256,  5th  ed. 

Proof  of  ownership — goods  in  the  possession  of  servants.  In 
general  the  possession  of  a  servant  is  the  possession  of  the  master,  the 
servant  having  merely  the  charge  and  custody  of  the  goods ;  and  in 
such  case,  the  property  must  be  laid  in  the  master,  and  not  in  the  ser- 
vant.^ 2  East,  P.  C.  652 ;  2  Russ.  on  Cri.  250,  5th  ed.  Upon  an 
indictment  for  stealing  goods  from  a  dissenting  chapel,  laying  the 
property  in  one  Evans,  it  appeared  that  Evans  was  the  servant  of  the 
trustees  of  the  chapel ;  that  he  had  a  salary  of  bl.  a  year,  with  the 
care  of  the  chapel  and  the  things  in  it,  to  clean  and  keep  in  order; 
that  he  held  the  only  key  of  the  chapel,  but  that  the  minister  had  a 
key  of  the  vestry,  through  which  he  might  enter  the  chapel.  Upon  a 
case  reserved,  the  judges  were  of  opinion,  that  the  property  of  the 
goods  taken  could  not  be  considered  as  belonging  to  Evans.     R.  v. 

'Commonwealth  v.  Morse,  14  Mass.  217  ;  Norton  v.  People,  8  Cow.  137 ;  Poole  v. 
SjTHonds,  1  N.  H.  289.  Where  one  has  received  money  for  himself  and  for  another 
for  whom  he  acted  as  agent,  and  to  whom  he  had  given  credit  for  his  share,  it  is  well 
alleged  in  the  indictment  for  larceny,  that  the  money  was  the  property  of  the  person 
receiving  it.    State  v.  Grant,  22  Me.  171.    S. 


LARCEXY.  867 

Hutchinson,  Riiss.  &  Ry.  412.  So  where  the  prisoner  was  convicted 
of  larceny  from  the  iiouse  of  \V.,  and  at  the  trial  B.  proved  that  he 
managed  the  property  for  W.,  who  resided  at  Patras;  that  he  received 
the  rent  in  W.'s  absence,  and  l(>t  the;  house,  it  was  held,  that  there  was 
sufficient  evidence  of  W.'s  ownership  to  sup{)ort  the  conviction.  R.  v. 
Brummitt,  Ij.  &  C.  9.  But  in  some  (!ases,  as  against  third  persons,  a 
party  who,  as  against  his  employer,  has  the  bare  charge  of  goods,  may 
be  considered  as  having  the  possession,  as  in  the  case  of  the  driver  of  a 
stage-coach.  R.  v.  Deakin,  ante,  p.  688.  So  it  has  been  said  that 
where  the  owner  of  goods  steals  them  from  his  own  servant  with 
intent  to  charge  him  with  the  loss,  the  goods  may  be  described  as  the 
property  of  the  servant.  2  Russ.  Cri.  240,  5th  ed.,  note  {t) ;  2  East, 
P.  C.  c.  16,  ss.  7,  90,  sed  qucere. 

Proof  of  ownership — goods  of  corporations.  Wliere  goods  are 
the  property  of  a  company  of  persons  not  incorporated,  they  must  be 
described  as  the  goods  of  the  individuals,  or  of  some  one  of  the  indi- 
viduals, and  others.  2  Russ.  Cri.  258,  5th  ed.  But  by  the  7  Geo.  4, 
c.  64,  s.  20,  repealed,  36  &  37  Vict.  c.  91,  judgment  shall  not  be  stayed 
or  reversed  on  the  ground  that  any  person  or  persons  mentioned  in  an 
indictment  or  information,  is  or  are  designated  by  the  name  of  officer, 
or  other  descriptive  appellation,  instead  of  his,  her,  or  their  proper 
name  or  names. 

The  goods  of  a  corporation  must  be  described  as  their  goods,  by 
their  corporate  narae.^  Where  in  an  indictment  the  goods  were  laid 
to  be  the  property  of  A.  B.,  C.  D.,  etc.,  they  the  said  A.  B.,  C.  D.,  etc., 
being  the  churchwardens  of  the  parish  church ;  and  it  appeared  that 
the  churchwardens  were  incorporated  by  the  name  of  "  the  church- 
wardens of  the  parish  church  of  Enfield,"  the  court  (at  the  old  Bailey) 
held  the  variance  fatal.  They  said  that  where  any  description  of  men 
are  directed  by  law  to  act  in  a  corporate  capacity,  their  natural  and 
.  *individual  capacity,  as  to  all  matters  respecting  the  subject  of  r:^/>Qi 
their  incorporation,  is  totally  extinct.  If  an  action  were  ^ 
brought  in  the  private  names  of  the  prosecutors,  for  any  matter  relat- 
ing to  their  public  capacity,  they  must  unavoidably  be  nonsuited,  and 
d  fortiori  it  must  be  erroneous  in  a  criminal  prosecution.  R.  v.  Pat- 
rick, 1  Leach,  252.  But  where  trustees  were  appointed  by  Act  of 
parliament  (but  not  incorporated),  for  providing  a  workhouse,  the 
property  stolen  from  them  was  laid  to  be  the  property  of  "  the  trustees 
of  the  poor  of,"  etc.,  without  naming  them,  the  court  (at  the  old 
Bailey)  held  it  wrong ;  for  as  the  Act  had  not  incorporated  the  trus- 
tees, and  by  that  means  given  them  collectively  a  public  name,  the 
property  should  have  been  laid  as  belonging  to  A.  B.,  etc.,  by  their 
proper  names,  and  the  words  "  trustees  of  the  poor  of,"  etc.,  subjoined 
as  a  description  of  the  capacity  in  which  they  were  authorized  by  the 

^  In  a  prosecution  for  larceny,  the  property  in  the  goods  was  alleged  to  be  in  a  rail- 
road company ;  held  that  proof  of  the  de/ncto  existence  of  the  corporation  was  suffi- 
cient. Smith  r.  State,  28  Ind.  321 ;  People  v.  Schwartz,  32  Cal.  IGO.  S.  People  v. 
Barrie,  49  Cal.  342. 


868  LARCEXY. 

legislature  to  act.  R.  v.  Sherrington,  1  Leacli,  513.  On  the  authority 
of"  this  case  the  following  was  ch^cided  :  By  the  24  Geo.  3,  c.  15,  cer- 
tain inhabitants  in  seven  parishes  Avere  incorporated  by  the  name  of 
"the  guardians  of  the  poor  of/'  etc.  Twelve  directors  were  to  be  ap- 
pointed out  of  the  guardians,  and  the  property  belonging  to  the  corpo- 
ration was  vested  in  "the  directors  for  the  time  being,"  Ayho  Ayere  to 
execute  the  powers  of  the  act.  The  prisoner  was  indicted  for  embez- 
zling the  moneys  of  "the  directors  of  the  poor,"  etc.  The  judges  on 
a  case  reserved  held,  that  the  money  should  have  been  laid,  either  as 
the  money  of  the  guardians  of  the  poor,  by  their  corporate  name,  or 
of  the  directors  for  the  time  being,  by  their  individual  names.  R.  v. 
Beacall,  1  Moo.  C.  C.  15.  See  R.  v.  Jones,  1  Leach,  366 ;  2  East, 
P.  C.  991. 

InR.  V.  Frankland,  L.  &  C.  276  ;  32  L.  J.,  M.  C.  69,  it  was  ob- 
jected that  the  indictment  laid  the  property  in  A.  B.  and  others, 
whereas  there  was  evidence  to  go  to  the  jury  that  the  prosecutors  were 
an  incorporated  company.  It  seems  that  if  they  had  been  proved  to 
be  so,  they  ought  to  have  been  alleged  to  be  so  in  the  indictment,  and 
then  the  indictment  would  have  been  good  under  s.  81  of  the  Larceny 
Act,  and  the  oifence  would  not  have  been  triable  at  Quarter  Sessions. 
But  the  court  held  that  there  was  not  sufficient  evidence  of  the  in- 
corporation of  the  company  ;  which  might  be  proved  by  the  certificate 
of  incorporation  under  the  Joint  Stock  Companies  Acts,  but  could  not 
be  presumed  from  the  fact  that  the  parties  purported  to  be  a  corpo- 
ration and  acted  as  such,  whatever  might  be  the  case  with  respect  to  a 
corporation  for  public  purposes  or  by  prescription. 

In  R.  V.  Langton,  L.  R.  2  Q.  B.  D.  296  ;  46  L.  J.,  M.  C.  136,  it 
was  held  that  it  was  not  necessary  to  produce  the  certificate  of  incor- 
poration of  a  company,  but  that  the  existence  of  the  company  was  suf- 
ficiently proved  by  evidence  that  it  had  carried  on  business  as  such. 
The  prisoners  were  convicted  of  stealing  some  brass  described  in  the 
indictment  as  the  property  of  II.  The  evidence  was  that  the  brass, 
was  the  property  of  a  trading  company  in  course  of  being  wound  up, 
and  that  H.  was  the  official  liquidator,  in  proof  of  Ayhich  a  copy 
of  the  London  Gazette  Avas  produced,  containing  an  advertisement  of 
a  meeting  of  the  company  in  which  a  resolution  that  the  company  be 
Avound  up  and  H.  be  appointed  official  liquidator  had  been  passed, 
but  there  was  no  further  evidence  that  the  brass  was  the  property  of 
H.,  or  that  he  had  dealt  with  it  as  his  property.  The  conviction  was 
quashed  on  appeal,  the  court  holding  that  the  evidence  failed  to  show 
*PQ9l  *that  H.  had  ever  taken  possession  of  the  brass,  although  he 
"^-l  might  have  had  a  title  to  the  property.  R.  v.  Bell,  14  Cox,  C. 
C.  R.  623. 

By  40  &  41  Vict.  c.  26,  s.  6,  certified  copies  of  incorporation  regis- 
tered under  the  Companies  Acts,  1862  to  1877,  are  to  be  received  in 
evidence  as  if  they  were  the  original  certificates. 

Proof  of  ownership — goods  in  a  church. — Money  stolen  from 
an  ancient  poor's  box  fixed  up  in  a  church  is  properly  laid  in  the 


LARCENY.  869 

vicar  and  churchwardens  of  the  parish.     R.  v.  Wortley,  1    Den.  C. 
C.  R.  162. 

Venue.  An  indictment  for  larceny  must  be  tried  in  the  countv  in 
wliich  the  offence  was,  either  actually,  or  in  contemplation  of  law, 
committed.  But  where  goods  stolen  in  one  county  are  carried  by  the 
offender  into  another  or  others,  he  may  be  indicted  in  any  of  them, 
for  the  continuance  of  the  asportation  is  a  new  ca])ti(Hi.^  1  Hale,  P. 
C.  507  ;  4  Bl.  Com.  305 ;  1  Moo.  C.  C.  47  (n).  The  possession  still 
continuing  in  the  owner,  every  moment's  continuance  of  the  trespass 
is  as  much  a  wrong,  and  may  come  under  the  word  ecpit,  as  much  as 
the  first  taking.  Hawk.  P.  C.  b.  1,  c.  19,  s.  52.  Thougli  a  consider- 
able period  elapse  between  the  original  taking  and  the  carrying  of  them 
into  another  county,  the  rule  still  applies  :  as  where  property  was  stolen 
on  the  4th  November,  1823,  in  Yorkshire,  and  carried  into  Durham 
on  the  17th  March,  1824.  R.  v.  Parkin,  1  :Moo.  C.  C.  45.  This  rule 
does  not,  however,  hold  with  regard  to  compound  larcenies,  in  which 
case  the  prisoner  can  otdy  be  tried  for  simple  larceny  in  the  same 
county.  Thus,  where  the  prisoner  robbed  the  mail  of  a  letter,  either 
in  Wiltshire  or  Berkshire,  and  brought  it  into  Middlesex,  and  was  in- 
dicted on  the  repealed  statutes  5  Geo.  2,  c.  25,  and  7  Geo.  3,  c.  40,  the 
judges  upon  a  case  reserved  held,  that  he  could  not  be  convicted  capi- 
tally out  of  the  county  in  which  the  letter  was  taken  from  the  mail. 
R.  V.  Thompson,  2  Russ.  Cri.  270,  5th  ed.  So  if  A.  robs  B.,  in  the 
county  of  C,  and  carries  the  goods  into  the  county  of  D.,  A.  cannot 
be  convicted  of  robbery  in  the  latter  county,  but  he  may  be  indicted 
for  larceny  there.  2  Hale,  P.  C.  163.  If  the  thing  stolen  be  altered 
in  its  character  in  the  first  county,  so  as  to  be  no  longer  what  it  was 
when  it  was  stolen,  an  indictment  in  the  second  county  must  describe 
it  according  to  its  altered,  and  not  according  to  its  original,  state.  2 
Russ.  Cri.  270,  5th  ed.;  see  R.  v.  Edward,  Russ.  &  Ry.  497.  Thus 
an  indictment  in  the  county  of  H.,  for  stealing  "  one  brass  furnace," 
is  not  supported  by  evidence  that  the  prisoner  stole  the  furnace  in  the 
county  of  R.,  and  there  broice  it  to  pieces,  and  brought  the  pieces  into 
the  county  of  H.  R.  v.  Halloway,  1  C.  &  P.  127,  12  E.  C.  L.  A 
joint  original  larceny  in  one  county,  may  become  a  separate  larceny 

^  Commonwealth  v.  Cousins,  2  Leigh,  708  ;  Commonwealth  v.  Dewitt,  10  Mass.  154 ; 
State  V.  Douglass,  17  Me.  li)3.  The  rule  that  where  property  is  stolen  in  one  county, 
and  is  carried  by  the  thief  into  another,  he  may  be  convicted  of  larceny  in  the  latter 
county,  applies  as  well  to  property  which  is  made  the  subject  of  larceny  by  statute  as 
to  property  which  is  the  subject  of  larceny  by  the  common  law.  Commonwealth  i\ 
Rand,  7  Mete.  475.  The  legal  possession  of  goods  stolen  continues  in  the  owner,  and 
every  moment's  continuance  of  the  trespass  and  felony  amounts  in  legal  consideration 
to  a  new  caption  and  asportation.  And  therefore  it  was  held,  that  if  goods  were 
stolen  before  the  Revised  Statutes  took  effect,  and  were  retained  in  the  possession  of 
the  thief  until  after  they  came  into  operation,  he  might  be  indicted  and  punished  un- 
der these  statutes.  State  v.  Somerville,  32  Me.  14.  In  simple  larceny,  the  thief  may 
b«  tried  in  any  county  in  which  he  may  be  found  possessed  of  the  stolen  goods.  Tip- 
pins  V.  State,  14  Ga.  422 ;  Commonwealth  v.  Uprichard,  3  Gray,  434.  Where  goods 
are  stolen  in  one  county  and  carried  by  the  thi^f  into  another  county,  the  indictment 
is  properly  found  in  the  county  where  the  thief  with  the  goods  is  arrested.  Aaron  v. 
State,  39  Ala.  684.     S. 


870  LARCENY. 

in  another.  Thus  where  four  prisoners  stole  goods  in  the  county 
of  Gloucester,  and  divided  them  in  that  county,  and  then  carried 
their  shares  into  the  county  of  Worcester,  in  separate  bags,  it  was 
ruled  by  Holroyd,  J.,  that  the  joint  indictment  against  all  the 
prisoners  could  not  be  sustained  as  for  a  joint  larceny  in  the  county 
of  Worcester ;  and  he  put  the  counsel  for  the  prosecution  to  his  elec- 
tion, as  to  which  of  the  prisoners  he  would  proceed  against.  R.  v. 
Barnett,  2  Euss.  Cri.  271,  5th  ed.  But  where  a  larceny  was  committed 
by  two,  and  one  of  them  carried  the  stolen  goods  into  another  county^ 
the  other  still  accompanying  him,  without  their  ever  having  been 
separated,  they  were  held  both  indictable  in  either  county,  the  pos- 
session of  one  being  the  possession  of  both  in  each  county,  as  long 
♦PQQT  *^s  t^i^y  continued  in  company.  R.  v.  M'Donagh,  Car.  Suppl. 
*'^'^-l   23,  2nded. 

A  man  may  be  indicted  for  larceny  in  the  county  into  which  the 
goods  are  carried,  although  he  did  not  himself  carry  them  thither. 
The  prisoners.  County  and  Donovan,  laid  a  plan  to  get  some  coats 
from  the  prosecutrix,  under  pretence  of  buying  them.  The  prosecu- 
trix had  them  in  Surrey,  at  a  public-house;  the  prisoners  got  her  to 
leave  them  with  Donovan  whilst  she  went  with  County,  that  he  might 
get  the  money  to  pay  for  them.  In  her  absence  Donovan  carried  them 
into  Middlesex,  and  County  afterwards  joined  him  there,  and  con- 
curred in  securing  them.  The  indictment  was  against  both  in  Mid- 
dlesex, and  upon  a  case  reserved  the  judges  were  unanimous,  that  as 
County  was  present  aiding  and  abetting  in  Surrey  at  the  original  lar- 
ceny, his  concurrence  afterwards  in  Middlesex,  though  after  an  inter- 
val, might  be  connected  with  the  original  taking,  and  brought  down 
his  larceny  to  the  subsequent  possession  in  Middlesex.  They  there- 
fore held  the  conviction  right.  R.  v.  County,  2  Russ.  Cri.  272, 
5th  ed. 

Where  a  wife  stole  her  husband's  goods  within  the  jurisdiction  of 
the  Central  Criminal  Court,  and  the  goods  were  found  in  the  posses- 
sion of  the  prisoner  (an  avowterer)  in  Liverpool,  it  was  held  that  there 
was  no  joint-possession  by  the  wife  and  the  prisoner  within  the  juris- 
diction of  the  Court.     R.  V.  Prince,  11  Cox,  C.  C.  145. 

The  prisoner  was  tried  in  Kent  for  stealing  two  geldings  in  that 
county.  The  horses  were  stolen  in  Sussex.  The  prisoner  was  appre- 
hended with  them  at  Croydon,  in  Surrey.  The  only  evidence  to  sup- 
port the  charge  of  stealing  in  Kent  was,  that  when  the  prisoner  was 
apprehended  at  Croydon,  he  said  he  had  been  at  Dorking  to  fetch  the 
horses,  and  that  they  belonged  to  his  brother  who  lived  at  Bromley. 
The  police-officer  offered  to  go  to  Bromley.  They  took  the  horses  and 
went  as  far  as  Beckenham  church,  when  the  prisoner  said  he  had  left 
a  parcel  at  the  Black  Horse,  in  some  place  in  Kent.  The  police-officer 
went  thither  with  him,  each  riding  one  of  the  horses ;  when  they  got 
there,  the  officer  gave  the  horses  to  the  ostler.  The  prisoner  made  no 
inquiry  for  the  parcel,  but  effected  his  escape,  and  afterwards  was 
again  apprehended  in  Surrey.  The  prisoner  was  convicted,  but  sen- 
tence was  not  passed,  Gaselee,  J.,  reserving  the  question  whether  there 


LARCEiry.  871 

was  any  evidence  to  support  the  indictment  in  Kent.  The  judges 
were  unanimously  of  o})inion  that  there  was  no  evidence  to  be  left  to 
the  jury  of  stealing  in  Kent,  and  that  no  judgment  ought  to  be  given 
upon  the  conviction,  but  that  the  prisoner  should  be  removed  to 
Surrey,  R.  v.  Simmond,  1  Moody,  C.  C.  408.  The  prisoner  was  in- 
dicted for  a  larceny  at  common  law,  for  stealing  a  quantity  of  lead 
in  Middlesex.  It  app(>arod  that  the  lead  was  stolen  from  the  roof  of 
the  church  of  Iver,  in  Buckinghamshire.  The  prisoner  being  indicted 
at  the  Central  Criminal  Court,  which  has  jurisdiction  in  Middlesex, 
and  not  in  Buckinghamshire,  the  judges  (Parke,  J.,  Alderson,  B.,  and 
Patteson,  J.),  held,  that  he  could  not  be  convicted  there,  on  the  ground 
that  the  original  taking  not  being  a  larceny,  but  a  felony  created  by 
statute,  the  subsequent  possession  could  not  be  considered  a  larceny. 
R.  V.  Millar,  7  C.  &  P.  665,  32  E.  C.  L. 

Now  by  the  24  &  25  Vict.  c.  96,  s.  114  (replacing  the  7  &  8  Geo. 
4,  c.  29,  s.  78),  supra,  p.  643,  the  prisoner  may  be  indicted  in  any 
county  in  which  he  is  found  in  possession  of  the  goods. 

*Four  men,  named  Rogers,  Irwin,  Johnson,  and  Byatt,  were  r^nqA 
indicted  at  the  Middlesex  Sessions  for  stealing  and  receiving  a  •- 
watch.  The  watch  was  stolen  at  Liverj)ool,  and  was  sent  by  railway 
next  day  and  delivered  to  Byatt  in  Middlesex.  Rogers  had  by  letter 
advised  Byatt  of  the  sending  of  the  watch.  Irwin  and  Johnson  were 
present  aiding  and  abetting  the  receipt  of  the  watch,  but  before  the 
box  containing  it  could  be  opened  by  the  three  men  they  were  taken 
into  custody.  Byatt  pleaded  guilty.  Irwin  and  Johnson  were  found 
guilty  of  receiving  with  a  guilty  knowledge,  and  Rogers  guilty  of 
stealing,  and  it  was  held  that  Rogers  retained  control  over  the  watch, 
and  was  therefore  constructively  in  possession  of  it  in  Middlesex. 
R.  i\  Rogers,  L.  R.  1  C.  C.  R.  136;  37  L.  J.,  M.  C.  83. 

If  the  original  taking  be  one  of  which  the  common  law  cannot  take 
cognizance,  as  where  the  goods  are  stolen  at  sea,  the  thief  cannot  be 
indicted  for  larceny  in  any  county  into  which  he  may  carry  them.^  3 
lust.  113;  2  Russ.  Cri,  273,  5th  ed.  And  so  where  the  goods  are 
stolen  abroad  (as  in  Jersey),  carrying  them  into  an  English  county 
will  not  render  the  offender  indictable  there.  R.  v.  Prowess,  1  Moody, 
C.  C.  349;  R.^.  Debruiel,  11  Cox,  C.  C.  207.  So  where  the  goods 
are  stolen  in  France.     R.  v.  Madge,  9  C.  &.  P.  29,  38  E.  C.  L.^ 

^  Contra,  McCullough's  Case,  2  Eog.  Kec.    S. 

'  Larceny  committed  in  one  of  the  United  States  is  not  punishable  in  another, 
although  tlie  thing  stolen  be  brought  into  the  latter  State.  State  v.  Brown,  1  Hayw. 
100;  People  t'.  Gardner,  2  Johns.  477;  People  ?;.  Schenck,  Id.  479;  Commonwealth 
V.  Simmons,  5  Binn.  617  ;  McCullough's  Case,  2  Rog.  Rec.  45 ;  State  v.  Le  Blanche, 
2  Vr.  82;  People  r.  Loughridge,  1  Nev.  11.  Contra,  Commonwealth  v.  Cullen,  1 
Mass.  115  ;  Commonwealth  v.  Andrews,  2  Id.  14;  State  v.  Ellis,  3  Conn.  185;  Rex.  v. 
Peas,  1  Root,  69;  People  r.  Burke,  11  Wend.  120;  Hamilton  r.  State,  11  0.435; 
State  V.  Johnson,  2  Or.  115  ;  Henry  v.  State,  7  Cold.  331 ;  State  v.  Cummings,  33  Conn. 
260 ;  State  r.  Williams,  35  Mo.  229  ;  Ferrill  ?•.  Commonwealth,  1  Duv.  153 ;  Common- 
wealth V.  Holden,  9  Grav,  7  ;  Morrissev  v.  People,  11  Mich.  327 ;  State  v.  Underwood, 
49  Me.  181 ;  SUte  v.  Beiinett,  14  la.  479.    S. 


872  UBEL. 


^695] 


*LIBEL. 


PAGE 

Blasphemous  libels — at  common  law 695 

Statutes ,        ,  696 

Indecent  libels 697 

Libels  on  the  government 697 

on  the  administration  of  justice 698 

upon  individuals    ...,,,...  698 

Punishment *.,.  700 

Costs  .        .        .        • 701 

Proof  of  introductory  averments          .......  701 

Proof  of  publication — in  general 703 

Of  libels  contained  in  newspapers 704 

By  admission  of  the  defendant   .,...,  706 

Constructive  publication        •,..,..  707 

Proof  of  innuendoes ,  709 

of  malice ....'..  709 

of  intent 710 

Venue    .         .               710 

Proof  for  the  defendant— 6  &  7  Vict.  c.  96 711 

Statute  32  Geo.  3,  c.  60 716 

Publishing  libel  to  extort  money 716 


Blasphemous  libels — at  common  law.  It  has  been  said  that  all 
blasphemies  against  God  or  the  Christian  religion,  or  the  Holy 
Scriptures,  are  indictable  at  common  law,  as  also  are  all  impostors  in 
religion,  such  as  falsely  pretend  extraordinary  missions  from  God,  or 
terrify  or  abuse  the  people  with  false  denunciations  of  judgment.  In 
like  manner  all  malicious  revilings,  in  public  derogation  and  con- 
tempt of  the  established  religion,  are  punishable  at  common  law, 
inasmuch  as  they  tend  to  a  breach  of  the  peace.  1  East,  P.  C,  3  ; 
1  Russ.  by  Greav.  220.  So  it  has  been  said,  that  to  write  against 
Christianity  in  general  is  clearly  an  offence  at  common  law,  but  this 
rule  does  not  include  disputes  between  learned  men  on  particular 
controverted  points,  but  only  refers  to  tliose  cases  wliere  the  very  root 
of  Christianity  itself  is  struck  at.  R.  v.  Woolston,  Fitzgib.  66  ;  2  Str. 
834;  but  see  now  R.  v.  Foote,  15  Cox,  C.  C.  231,  infra.  It  is  an  in- 
dictable offence  at  common  law  to  publish  a  blasphemous  libel  of  and 
concerning  the  Old  Testament.     R.  v.  Hetherington,  5  Jur.  529. 

With  regard  to  the  boundary  of  the  rule  regulating  the  discussion 
of  religious  topics,  it  is  observed  by  Mr.  Starkie,  that  a  malicious 
and  mischievous  intention,  or  what  is  equivalent  to  such  intention,  in 
law  as  well  as  morals,  a  state  of  ajxithy  and  indifference  to  the 
interests  of  society,  is  the  broad  boundary  between  right  and  wrong. 
If  it  can  be  collected  from  the  circumstances  of  the  publication,  from 
a  display  of  offensive  levity,  from  contumelious  and  abusive  ex]>res- 
sions  applied  to  sacred  persons  or  subjects,  timt  the  design  of  the 
author  was  to  occasion  that  mischief  to  which  the  matter  M'hich  he 


LIBEL.  873 

♦publishes  immediately  tends,  to  destroy,  or  even  to  weaken  r^nqn 
men's  sense  of  religious  or  moral  obligation,  to  insult  those  wlio  •- 
believe,  by  casting  contumelious  abuse  and  ridicule  upon  their  doctrines, 
or  to  bring  the  established  religion  and  form  of  worship  into  disgrace 
and  contempt,  the  offence  against  society  is  complete.  2  Starkie  on 
Slander,  147,  2nd  ed.  This  passage  from  Starkie  on  Slander  was 
cited  with  approval  by  Lord  Chief  Justice  Coleridge  in  R.  v.  Foote, 
infra.  Upon  an  indictment  alleging  that  Jesus  Christ  was  an 
impostor,  a  murderer  in  principle,  and  a  fanatic,  a  juryman  in(piired 
whether  a  work  denying  the  divinity  of  our  Saviour  was  a  libel ; 
Abbott,  C.  J.,  stated,  that  a  work  speaking  of  Jesus  Christ  in  the 
language  here  used  was  a  libel,  and  the  defendant  was  found  guilty. 
Upon  a  motion  for  a  new  trial,  on  the  ground  that  this  was  a  wrong 
answer  to  the  question  put,  the  Court  of  King's  Bench  held  the 
answer  correct.  R.  v.  Waddington,  1  B.  &  C.  26,  8  E.  C.  L.  The 
question  whether  writing  against  Christianity  without  levity  or  mali- 
cious abuse  is  libellous  has  been  discussed  at  length  in  R.  v.  Bradlaugh, 
15  Cox,  C.  C.  217,  and  in  R.  v.  Foote,  15  Cox,  C.  C.  231.  A  corrected 
report  of  the  Lord  Chief  Justice  Coleridge's  judgment  in  the  latter 
case  was  published  in  the  form  of  a  pamphlet  with  his  authority 
(Messrs.  Stevens  and  Sons,  119  Chancery  Lane,  1883).  Mr.  Justice 
Stephen,  however,  in  a  powerful  article  in  the  "  Fortnightly  Review  " 
of  March,  1884,  has  shown  good  reason  for  believing  that  the  law 
always  was,  and,  therefore,  is  now,  that  to  attack  the  root  of 
Christianity  in  writing  is  to  be  guilty  of  a  blasphemous  libel.  The 
Lord  Chief  Justice  has,  however,  ruled  that  the  law  "  is  and  always 
has  been,  that  if  the  decencies  of  controversy  ai'e  observed,  even  the 
fundamentals  of  religion  may  be  attacked  without  a  person  being 
guilty  of  blasphemous  libel ;"  and  it  is  cei'tain  that  no  case  can  be 
found  in  which  a  person  has  been  convicted  of  a  blasphemous  libel 
merely  for  a  denial  of  the  truth  of  Christianity  without  levity  or 
indecency. 

Blasphemous  libels — statutes.  By  the  1  Ed.  6,  c.  1,  persons  re- 
viling the  sacrament  of  the  Lord's  Supper  are  punishable  by  impris- 
onment. By  the  1  Eliz.  c.  2,  s.  3,  applied  to  the  present  Book  of  Com- 
mon Prayer  by  14  Car.  2,  c.  4,  s.  20,  ministers  and  others  speaking  in 
derogation  of  the  Book  of  Common  Prayer  are  punishable  as  therein 
mentioned.     See  also  the  12  Eliz.  c.  12 ;  3  Jac.  1,  c.  21,  s.  9. 

By  the  9  &  10  Will.  3,  c.  32,  s.  1,  "if  any  person  or  persons  hav- 
ing been  educated  in,  or  at  any  time  having  made  profession  of,  the 
Christian  religion  within  tliis  realm,  shall,  by  writing,  printing, 
teaching,  or  advised  speaking,  [cleny  any  one  of  the  Persons  in  the 
Holy  Trinity  to  be  God,  or  shall]  assert  or  maintain  there  are  more 
gods  than  one,  or  shall  deny  the  Christian  religion  to  be  true,  or  the 
Holy  Scriptures  of  the  Old  and  New  Testament  to  be  of  divine 
authority,  shall,  upon  an  indictment  or  information  in  any  of  his 
Majesty's  courts  at  Westminster,  or  at  the  assizes,  be  thereof  law- 
fully convicted  by  the  oath  of  two  or  more  credible  witnesses,  such 


874  LIBEL. 

person  or  persons  for  the  first  oifence  shall  be  adjudged  incapable  and 
disabled  in  law,  to  all  intents  and  purposes  whatsoever,  to  have 
or  enjoy  any  office  or  offices,  employment  or  employments,  ecclesias- 
tical, civil,  or  military,  or  any  part  in  them,  or  any  profit  or  advantage 
appertaining  to  them  or  any  of  them.  And  if  any  person  or  persons 
so  convicted  as  aforesaid  shall,  at  the  time  of  his  or  their  conviction, 
*PQ7l  *^"j*^y  ^^  possess  any  office,  place,  or  employment,  such  office, 
-I  place,  or  employment  shall  be  void,  and  is  hereby  declared  void. 
And  if  such  person  or  persons  shall  be  a  second  time  lawfully  con- 
victed as  aforesaid,  of  all  or  any  of  the  aforesaid  crime  or  crimes,  then  he 
or  they  shall  from  henceforth  be  disabled  to  sue,  prosecute,  plead,  or 
use  any  action  or  information  in  any  court  of  law  or  equity,  or  to  be 
guardian  of  any  child,  or  executor  or  administrator  of  any  person,  or 
capable  of  any  legacy  of  deed  or  gift,  or  to  bear  any  office,  civil  or 
military,  or  benefice  ecclesiastical  for  ever  within  this  realm  ;  and  shall 
also  sulier  imprisonment  for  the  space  of  three  years,  without  bail  or 
mainprize,  from  the  time  of  such  conviction." 

By  s.  2,  information  of  such  words  must  be  given  upon  oath  before 
a  justice,  within  four  days  after  such  words  spoken,  and  the  prosecu- 
tion of  such  offence  be  within  three  months  after  such  information. 

By  s.  3,  persons  convicted  shall  for  the  first  offence  (upon  renun- 
ciation of  such  offence  or  erroneous  opinions  in  the  court  where 
they  were  convicted,  within  four  months  after  such  conviction)  be 
discharged  from  all  penalties  and  disabilities  incurred  by  such  con- 
viction. 

So  much  of  the  1  Will.  3,  c.  18,  s.  17,  and  9  &  10  Will.  3,  c.32,  as 
related  to  persons  denying  the  doctrine  of  the  Trinity,  was  repealed 
by  tlie  53  Geo.  3,  c.  160.  The  statute  of  the  9  &  10  Will.  3  has  been 
held  not  to  affect  the  common  law  offence,  being  cumulative  only.  R. 
V.  Carlisle,  3  B.  &  Aid.  161,  5  E.  C.  L.;  R.  v.  Waddington,  1  B.  & 
C.  26,  8  E.  C.  L. 

It  was  held  by  Lord  Coleridge,  C.  J.,  that  sect.  7  of  the  6  &  7  Vict, 
c.  96  (Lord  Campbell's  Act),  j^ost,  p.  716,  applies  to  the  case  of  blas- 
phemous libels.     R.  V.  Bradlaugh,  15  Cox,  C.  C.  217. 

Indecent  libels.  Although  an  opinion  formerly  prevailed,  that  the 
publication  of  an  obscene  or  indecent  writing,  not  containing  reflec- 
tions upon  any  individual,  was  not  an  indictable  offence  ;  Hawk.  P. 
C.  b.  2,  c.  73,  s.  9  ;  yet  a  different  rule  has  been  since  established,  and 
it  is  now  clear,  tliat  an  indictment  at  common  law  may  be  maintained 
for  any  offence  which  is  against  public  morals  or  decency.  R.  v.  Sed- 
ley,  Sid.  168  ;  R.  v.  Wilkes,  4  Burr.  2530  ;  Holt  on  Libel,  73,  2nd 
ed.  Under  this  head  may  be  comprehended  every  species  of  repre- 
sentation, whether  by  writing,  by  printing,  or  by  any  manner  of  sign 
or  substitute  which  is  indecent  and  contrary  to  public  order.  Holt,  ubi 
supra.  The  principle  of  the  cases  also  seems  to  include  the  repn^scn- 
tation  of  obscene  plays,  an  offence  which  has  formed  the  ground  of 
many  prosecutions.  2  Stark,  on  Slander,  159,  2nd  ed. ;  Holt,  73  ;  3 
Eruss.  Cri.  197,  5th  ed.     In  an  indictment  for  publishing  an  obscene 


LIBEL.  875 

book,  it  is  not  sufficient  to  describe  the  book  by  its  title  only,  but  the 
words  alleged  to  be  obscene  must  be  set  out.  Bradlaugh  v.  R.,  3  Q.  B. 
D.  607  ;  48  L.  J.,  M.  C.  5. 

A  summary  power  of  seart-hing  for  obscene  books,  pictures,  and 
other  articles,  and  punishing  persons  in  whose  possession  they  are 
found,  is  given  by  the  20  &  21  Vict.  c.  83. 

Libels  on  the  government.  The  result  of  the  numerous  cases  re- 
specting libels  on  the  government  is  thus  given  by  Mr.  Starkie  :  "  It 
is  the  undoubted  right  of  every  member  of  the  community  to  publish 
his  own  opinions  on  all  subjects  of  public  and  connnon  interest,  and 
so  long  as  he  exercises  this  inestimable  privilege  candidlv,  lionestlv^, 
and  sincerely,  with  a  view  to  benefit  society,  he  is  not  amenable  as  a 
♦criminal.  This  is  the  plain  line  of  demarcation  ;  where  this  rt-ona 
boundary  is  overstepped,  and  the  limit  abused  for  wanton  grati-  ^ 
fication  or  private  malice,  in  aiming  to  stab  at  the  private  character  of 
a  minister  under  color  and  pretence  of  discussing  his  public  conduct, 
or  where  either  public  men  or  their  measures  are  denounced  in  terms 
of  obloquy  or  contumely,  under  pretence  of  exposing  defects,  or  cor- 
recting errors,  but  in  reality  for  the  purpose  of  impeding  or  obstruct- 
ing the  administration  of  public  aifairs,  or  of  alienating  the  affections 
of  the  people  from  the  king  and  his  government,  and  by  weakening 
the  ties  of  allegiance  and  loyalty,  to  pave  the  way  for  sudden  and  vio- 
lent changes,  sedition,  or  even  revolution  ;  in  these  and  similar  instances, 
Avhere  public  miscliief  is  the  object  of  the  act,  and  the  means  used  are 
calculated  to  effect  that  object,  the  publication  is  noxious  and  injurious 
to  society,  and  is  therefore  criminal."  2  Stark,  on  Slander,  183,  2nd 
ed. ;  3  Russ.  Cri.  197,  5th  ed, ;  see  also  R.  v.  Lambert,  2  Campb.  398  ; 
R.  y.  Tuchin,  Holt,  R.  424  ;  5  St.  Tr.  583 ;  Holt  on  Libel,  88,  89 ; 
R.  V.  Collins,  9  C.  &  P.  465,  38  E.  C.  L. ;  R.  v.  Lovett,  Id.  462  ;  R. 
V.  Sullivan,  11  Cox,  C.  C.  44  (Irish).' 

Libels  on  the  administration  of  justice.  Where  a  person  either  by 
writing,  by  publication  in  print,  or  by  any  other  means  calumniates 
the  proceedings  of  a  court  of  justice,  the  obvious  tendency  of  such  an 
act  is  to  weaken  the  administration  of  justice,  and  consequently  to 
sap  the  very  foundations  of  the  constitution  itself.  Per  Buller,  J., 
R.  V.  Watson,  2  T.  R.  199.  It  certainly  is  lawful,  with  decency  and 
candor,  to  discuss  the  ])ropriety  of  the  verdict  of  a  jury,  or  the  de- 
cisions of  a  judge  ;  but  if  the  writing  in  question  contain  no  reasoning 
or  discussion,  but  only  declamation  and  invective,  and  is  written,  not 
with  a  view  to  elucidate  the  truth,  but  to  injure  the  character  of  in- 
dividuals, and  to  bring  into  hatred  and  contempt  the  administration  of 
justice,  such  a  publication  is  punishable.^  Per  Grose,  J.,  R.  v.  White, 
1  Campb.  359. 

1  Eespublica  v.  Dennie,  4  Y.  267.    S. 

*  It  is  libellous  to  publish  of  one  in  his  capacity  of  a  juror,  that  he  agreed  with 
another  juror  to  stake  the  decision  of  the  amount  of  damatjes  to  be  given  in  a  cause 
then  under  consideration,  upon  a  game  of  draughts.  Commonwealth  v.  Wright,  1 
Cusli.  46.    S. 


876  LIBEL. 

Libels  upon  individuals.  A  libel  upon  an  individual  is  defined  by- 
Mr.  Serjeant  Hawkins  to  be  a  malicious  defamation,  expressed  either 
in  printing  or  writing,  and  tending  either  to  blacken  the  memory  of 
one  that  is  dead,  see  infra,  p.  700,  or  the  reputation  of  one  that  is 
alive,  and  expose  him  to  public  hatred,  contempt,  or  ridicule.^  Hawk. 
P.  C.  b.  2,  c.  73,  s.  1.  Though  the  words  impute  no.  punishable  crime, 
yet  if  they  contain  that  sort  of  imputation  which  is  calculated  to  vil- 
ify a  man,  and  to  bring  him  into  hatred,  contempt,  and  ridicule,  an 
indictment  lies.^  Per  Mansfield,  C.  J.,  Thorley  v.  Lord  Kerry,  4 
Taunt.  364;  Digby  v.  Thompson,  4  B.  &  Ad.  821,  24  E.  C.  L.  No 
man  has  a  right  to  render  the  person  or  abilities  of  another  ridiculous, 
not  only  in  publications,  but  if  the  peace  and  welfare  of  individuals  or 
of  society  be  interrupted,  or  even  exposed  by  types  or  figures,  the  act 
by  the  law  of  England  is  a  libel.  Per  Lord  Ellenborough,  R.  v, 
Cobbett,  Holt  on  Lib.  114,  2nd  ed.  Thus  an  information  was  granted 
against  Dr.  Smollett  for  a  libel  in  the  "  Critical  Review,"  upon  Admiral 
Knowles,  insinuating  that  he  wanted  courage  and  veracity,  and  tend- 
ing to  cause  it  to  be  believed  that  he  was  of  a  conceited,  obstinate, 
and  incendiary  disposition.  R.  v.  Smollett,  Holt  on  Lib.  224  {n).  So 
an  information  was  granted  against  the  printer  of  a  newspaper  for  a 
ludicrous  paragraph,  giving  an  account  of  the  Earl  of  Clanricarde's 
marriage  with  an  actress  at  Dublin,  and  of  his  appearing  with  her  in 
*6991  *^^^^  boxes  with  jewels,  etc.  R.  v.  Kinncrsley,  1  W.  Bl.  294. 
-'  And  for  a  libel  on  the  Bishop  of  Durham,  contained  in  a  ])ar- 
agraph  which  represented  him  as  a  "bankrupt."  Anon.  K.  B.,  Hil. 
T.  1819;  Holt  on  Lib.  224  (n)  2nd  ed.  It  has  been  held  that  the 
rule  to  be  collected  from  the  modern  decisions  is  that  a  criminal  in- 
formation for  libel  can  only  be  granted  at  the  suit  of  persons  who  are 
in  some  public  office  or  position,  and  not  at  the  suit  of  private  per- 
sons. The  Queen  v.  Labouchere,  12  Q.  B.  D.  320;  but  see  the  judg- 
ment of  Denman,  J. 

It  is  extremely  difficult  to  define  the  boundaries  beyond  which  re- 
flections upon  the  character  of  an  individual  are  commonly  cognizable. 
It  is  said  by  INIr,  Plolt,  that  where  there  is  no  imputation  on  the  moral 
character,  no  words  of  ridicule  or  contempt,  and  nothing  which  can 
affiict  the  party's  reception  in  life,  it  is  no  libel  ;  and  he  illustrates  this 
position  by  the  following  case.  The  alleged  libel  was  this:  ''The 
Rev.  John  Robinson  and  Mr.  James  Robinson,  inhabitants  of  this 
town,  not  being  persons  that  the  pro})rietors  and  annual  subscribers 
think  it  proper  to  associate  with,  are  excluded  this  room."  This  libel 
was  published  in  the  casino  room  at  Southwold,  by  posting  in  on  a 
paper.  It  was  held,  that  the  paper  and  mode  of  pronudgating  it  did 
not  amount  to  a  libel  :  1st,  because  it  did  not,  by  any  necessary  or 
probable  implication,  affect  the  moral  fame  of  the  party  ;  2ndly,  that 
it  was  the  regulation  of  a  subscription  assembly,  and  the  paper  might 

'  McCorkle  v.  Binns,  5  Binn.  349 ;  State  v.  Avery,  7  Conn.  266.     S. 

^  Where  a  painter,  to  revenge  himself  on  one  whose  likeness  he  had  taken,  for  dis- 
approving of  the  execution,  painted  the  ears  of  an  ass  to  it  and  exjjosed  it  to  sale  at 
auction,  it  was  held  indictable  as  a  libel.     Mezzara's  Case,  2  Rog.  Rec.  113.     S. 


LIBEL.  877 

import  no  more  than  that  the  party  was  not  a  social  and  agreeable  char- 
acter in  the  intercourse  of  common  life  ;  3r(lly,  tiiat  the  words  charged 
him  with  nothing  definite,  threw  no  blemish  on  liis  reputation,  and 
implied  no  unfitness  for  general  society.  Robinson  v.  Jermyn,  1 
Price,  11 ;  Holt  on  Libel,  218,  2nd  ed. 

In  Gregory  v:  R.  (in  error),  15  Q.  B.  957,  G9  E.  C.  L.,  the  Court 
of  Exchequer  Chamber  held  the  following  words  sufficient  to  main- 
tain an  indictment  for  libel :  "  Why  should  T.  be  surprised  at  any- 
thing ]Mrs.  W.  does ;  if  she  chooses  to  entertain  B.  (the  prosecutor) 
she  does  what  very  few  will  do ;  and  she  is  of  course  at  liberty  to  follow 
the  bent  of  her  own  inclining,  by  inviting  all  infatuatcnl  foreigners 
who  crowd  our  streets  to  her  table  if  she  thinks  fit."  Where  a  pla- 
card M-as  posted  up  to  the  following  effect:  "  B.  Oakley,  game  and 
rabbit  destroyer,  and  his  wife,  the  seller  of  the  same  in  country  and 
town,"  Quain,  J.,  ruled  that  this  was  not  prlmd  facie  libellous  ;  and, 
as  there  was  no  innuendo  showing  that  it  charged  an  indictable 
offence,  or  that  it  related  to  the  calling  of  the  prosecutor,  the  learned 
judge  quashed  the  indictment.  R.  v.  Yates,  12  Cox,  C.  C.  233.  It 
is  a  defamatory  libel  to  write  of  a  person  who  has  been  convicted  of 
felony  that  he  is  "  a  convicted  felon,"  if  he  has  received  a  pardon, 
or  suffered  his  sentence,  for  he  is  by  law  (9  Geo.  4,  c.  32,  s.  3)  no 
longer  a  felon.  Leyman  v.  Latimer,  3  Ex.  D.  352 ;  47  L.  J.,  Ex. 
470. 

Wherever  an  action  will  lie  for  a  libel  without  laying  special  damage, 
an  indictment  will  also  lie.  Also,  wherever  an  action  will  lie  for 
verbal  slander  without  laying  special  damage,  an  indictment  will  lie 
for  t|ie  same  words  if  reduced  to  writing  and  published.  But  the 
converse  of  this  latter  proposition  will  not  hold  good  ;  for  an  ac- 
tion or  indictment  may  be  maintained  for  Avords  written,  for  which 
an  action  could  not  be  maintained  if  they  were  merely  spoken. 
Thorley  v.  Lord  Kerry,  4  Taunt.  355.  As  for  instance,  if  a  man 
*  write  or  print,  and  publish,  of  another  that  he  is  a  scoundrel.  r:K7/-Krv 
J'Anson  v.  Stuart,  1  T.  R.  748  ;  or  villain.  Bell  v.  Stone,  1  L  '^^ 
B.  &  P.  331,  it  is  a  libel,  and  punishable  as  such;  although,  if  this 
were  merely  spoken,  it  would  not  be  actionable  without  special  dam- 
age. 2  H.  Bl.  531.  But  no  indictment  will  lie  for  mere  words  not 
reduced  into  Avriting;  2  Salk.  417;  R.  v  Langley,  6  Mod.  125; 
unless  they  be  seditious,  blasphemous,  grossly  immoral,  or  uttered  to  a 
magistrate  in  the  execution  of  his  office,  or  uttered  as  a  challenge  to 
fight  a  duel,  or  with  an  intention  to  provoke  the  other  party  to  send  a 
challenge.     Archb.  613,  10th  ed. 

With  regard  to  libels  on  the  memory  of  persons  deceased,  it  has 
been  held,  that  a  writing,  reflecting  on  the  memory  of  a  dead  person, 
not  alleged  to  be  published  Avith  a  design  to  bring  scandal  or  contempt 
on  the  family  of  the  deceased,  or  to  induce  them  to  break  the  peace, 
is  not  punishable  as  a  libel.^  R.  v.  Topham,  4  T.  R.  127  ;  and  see 
R.  V.  Taylor,  3  Salk.  198;  Holt  on  Lib.  230,  2nd  ed.;  and  semble 
that  an  application  for  a  criminal  information  for  a  libel  upon  a  de- 
^  Commonwealth  v.  Taylor,  5  Binney,  281.    S. 


878  LIBEL. 

ceased  person  made  by  his  representative  will  be  refused.  The 
Queen  v.  Labouchere,  injra. 

A  libel  upon  a  foreigner  is  indictable.  Thus  Lord  George  Gordon 
was  found  guilty  upon  an  information  for  a  libel  on  the  Queen  of 
France:  2  Stark,  on  Slander,  217,  2nd  ed. ;  and  informations  have 
also  been  granted  for  libels  upon  the  characters  of  the  Emperor  of 
Russia,  and  of  Napoleon.  Id.  In  the  latter  case,  Lord  Ellenbor- 
ough  appears  to  have  considered  the  situation  of  the  individuals  as 
forming  the  ground  of  the  decision.  "  I  lay  it  down  as  law,"  he 
says,  "that  any  publication  which  tends  to  disgrace,  revile,  and  de- 
fame persons  of  considerable  situations  of  power  and  dignity  in  for- 
eign countries,  may  be  taken  to  be  and  treated  as  a  libel,  and  particu- 
larly where  it  has  a  tendency  to  interrupt  the  amity  and  peace  be- 
tween the  two  countries."  The  fact  that  the  applicant  for  a  criminal 
information  for  libel  does  not  reside  in  this  country  is  a  strong  reason 
for  rejecting  the  application.  The  Queen  v.  Labouchere,  12  Q.  B.  D. 
320. 

It  is  not  necessary  that  the  libel  should  reflect  upon  the  character 
of  any  particular  individual,  provided  it  immediately  tend  to  produce 
tumult  and  disorder;  2  Stark,  on  Slander,  213,2nd  ed. ;  although 
the  contrary  was  formerly  held.  Hawk.  P.  C.  b.  1,  c.  28,  s.  9.  Thus 
an  information  was  granted  for  a  libel,  containing  an  account  of  a 
murder  of  a  Jewish  woman  and  child,  by  certain  Jews  lately  arrived 
from  Portugal ;  and  the  affidavits  set  forth  that  certain  persons  re- 
cently arrived  from  Portugal  had  been  attacked  by  the  mob,  and  bar- 
barously treated  in  consequence  of  the  libel.  R.  v.  Osborne,  Sess.  Ca. 
2G0;  Barnard,  K.  B.  138,  166. 

Informations  at  the  suit  of  public  bodies  upon  the  application  of  in- 
dividuals presiding  over  them,  have  been  frequently  granted  by  the 
Court  of  King's  Bench.  R.  v.  Campbell,  R.  v.  Bell,  Holt  on  Lib. 
240,  2nd  ed. ;  R.  v.  Williams,  5  B.  &  A.  595,  7  E.  C.  L. 

Punishment.  The  punishment  for  a  libel,  at  common  law,  was  fine 
or  imprisonment,  or  both. 

Now  by  the  6  &  7  Vict.  c.  96,  s.  4,  "  If  any  person  shall  mali- 
ciously publish  any  defamatory  libel,  knowing  the  same  to  be  false, 
every  such  person,  being  convicted  thereof,  shall  be  liable  to  be  im- 
prisoned in  the  common  gaol  or  house  of  correction,  for  any  term 
not  exceeding  two  years,  and  to  pay  such  fine  as  the  court  shall 
award." 

*7nn        *^y  ^'  ^'  "^^  ^^y  person  shall  maliciously  publish  any  de- 
-l   famatory  libel,  every  such  person,  being  consMcted  thereof, 
shall  be  liable  to  fine  or  imprisonment,  or  both,  as  the  court  may 
award,  such  imprisonment  not  to  exceed  the  term  of  one  year." 

Costs.  By  s.  8,  in  case  of  any  indictment  or  information  by  a  pri- 
vate prosecutor  for  the  publication  of  any  defamatory  libel,  if  judgment 
shall  be  given  for  the  defendant,  he  shall  be  entitled  to  recover  from 
the  prosecutor  the  costs  sustained  by  the  said  defendant  by  reason  of 


LIBEL.  879 

such  Indictment  or  information ;  and  upon  a  special  plea  of  justifi- 
cation to  such  indictment  or  information,  if  the  issue  be  found  for  the 
prosecutor,  he  shall  be  entitled  to  recover  from  the  defendant  the  costs 
sustained  by  the  prosecutor  by  reason  of  such  plea,  such  costs  so  to  be 
recovered  by  the  defendant  or  prosecutor  respectively  to  be  taxed  by 
the  proper  officer  of  the  court  before  which  the  said  indictment  or  in- 
formation is  tried.  This  will  include  tiie  costs  of  unsuccessfully  op- 
posing the  rule  nisi  R.  v.  Steele,  L.  R.  1  Q.  B.  D.  482 ;  45  L.  J., 
Q.  B.  391.  Appeal  was  brought  from  the  decision,  but  was  dismissed, 
on  the  ground  that  under  the  Judicature  Acts,  1873  and  1875, 
there  is  no  appeal  to  the  Court  of  Appeal  in  a  criminal  case  ex- 
cept for  error  on  the  record.  See  the  case  reported,  2  Q.  B.  D.  37 ; 
46  L.  J.,  M.  C.  1. 

Under  the  8th  sect.,  if  judgment  be  given  for  the  defendant,  he  is 
entitled  to  recover  from  the  prosecutor  the  costs  sustained  by  reason  of 
the  indictment  or  information,  although  the  only  plea  is  not  guilty, 
and  the  judge  certifies  under  sect.  2  of  the  4  &  5  W.  &  M.  c,  18,  that 
there  was  reasonable  cause  for  preferring  the  same.  R.  v.  Latimer,  15 
Q.  B.  1077,69  E.  C.  L.;  20  L.  J.,  Q.  B.  129. 

Such  costs  can  be  recovered  by  action  in  one  of  the  superior  courts. 
See  Richardson  V.  Willis,  12  Cox,  C.  C.  351,  L.  R.  8  Exch.  69. 

Proof  of  introductory  averments.  Where  the  indictment  con- 
tains introductory  averments,  inserted  for  the  purpose  of  explaining 
and  pointing  the  libel,  such  averments  must  be  proved  as  laid.^  It 
frequently  happens  that  the  libel  is  directed  against  the  prosecutor  in 
a  particular  character,  and  an  intent  to  libel  him  in  that  character  is 
averred.  In  such  case,  it  must  be  made  to  appear  that  the  prosecutor 
bore  that  character.  But  in  general,  where  the  character  is  a  pub- 
lic one,  it  will  be  sufficient  if  it  appear  that  the  prosecutor  had  acted 
in  it,  and  it  will  not  be  necessary  to  give  strict  evidence  of  his  ap- 
pointment. Thus,  if  the  indictment  allege  that  the  prosecutor  was, 
at  the  time  of  the  supposed  injury,  a  magistrate  or  a  peace-officer, 
it  is  sufficient  to  show  that  he  previously  acted  as  such.  Berryman  v. 
Wise,  4  T.  R.  366  ;  2  Stark,  on  Slander,  2,  2nd  ed. 

Where  the  title  to  the  particular  situation  is  not  the  subject  of  any 
express  documentary  appointment,  the  acting  in  the  situation  is,  of 
course,  tlie  only  evidence  which  the  fact  admits  of.  2  Stark.  Ev. 
860,  1st  ed. 

Whether  a  person  practising  as  a  physician,  and  libelled  in  his 
character  as  such,  was  bound  to  prove,  by  strict  evidence,  the  intro- 
ductory averment  that  he  was  a  physician,  was  long  a  matter  of 
doubt.  In  a  case  at  nisi  prius,  Buller,  J.,  required  such  proof  to  be 
given ;  Pickford  v.  Gnteh,  1787  ;  2  Stark,  on  Slander,  3  (n),  2nd  ed.; 
but  in  a  subsequent  case,  the  Court  of  Common  Pleas  w-as  equally 
divided  upon  the  point.  Smith  v.  Taylor,  1  N.  R.  196.  r+yAQ 
It  has,  *however,  been  decided  by  the  Court  of  King's  Bench,   L 

*  An  indictment  for  libel  must  aver  any  extrinsic  facts  necessary  to  show  that  the 
words  complained  of  are  injurious.     State  v.  Atkins,  42  Vt.  252.    S. 


880  LIBEL. 

in  a  later  case,  that  to  support  an  averment  that  the  party  was  a 
physician,  it  is  necessary  to  give  regular  evidence  that  he  possessed 
lawful  authority  to  practise  as  such.  Collins  v.  Carnegie,  1  A.  &  E. 
695,  29  E.  C.  L.;  2  Nev.  &  M.  703. 

In  order  to  prove  the  prosecutor  to  be  an  attorney,  an  examined 
copy  of  the  roll  of  attorneys,  signed  by  the  plaintiff  is  sufficient.  So 
the  books  from  the  master's  office  containing  the  names  of  all  the  at- 
torneys, produced  by  the  officer  in  whose  custody  it  is  kept,  is  good 
evidence,  together  with  proof  that  the  party  practised  as  an  attorney 
at  the  time  of  the  offence.  R.  v.  Crossley,  2  Esp.  526  ;  Lewis  v. 
Walter,  3  B.  &  C.  138,  10  E.  C.  L.;  Jones  v.  Stevens,  11  Price,  1251. 
The  stamp-office  certificate,  countersigned  by  the  master  of  the  Court 
of  King's  Bench,  is  sufficient  primd  facie  evidence  of  the  party  be- 
ing an  attorney  of  that  court.  Sparling  v.  Heddon,  9  Bingh.  11,  23 
E.  C.  L. 

Where  the  indictment  specifies  the  particular  mode  in  which  the 
party  was  invested  with  the  particular  character  in  which  he  has  been 
injured,  it  will,  as  it  seems,  be  necessary  to  prove  such  descriptive  al- 
legation with  all  its  circumstances,  although  a  more  general  allegation 
would  have  been  sufficient ;  for  though  a  totally  irrelevant  alle- 
gation may  be  regarded  as  surplusage,  one  which  is  material  and 
descriptive  of  the  legal  injury  must  be  proved  as  laid.  2  Stark,  on 
Slander,  8,  2nd  ed. 

In  all  cases  where  the  libel  itself  is  an  admission  of  the  particular 
character  alleged,  further  proof  of  such  particular  character  is  unne- 
cessary. Thus,  where  in  an  action  for  words  spoken  of  the  plaintiff 
as  an  attorney,  it  appearing  that  they  contained  a  threat  to  have  the 
jilaintiff  struck  off  the  roll  of  attorneys,  it  was  held  unnecessary  to 
give  any  proof  of  the  plaintiff's  professional  character.  Bcrryman  v. 
Wise,  4  T.  R.  366.  So  where  the  words  were,  "  He  is  a  pettifogging, 
blood-sucking  attorney."  Armstrong  v.  Jordan,  cor.  Hullock,  J.,  2 
Stark,  on  Slander,  11  (n),  2nd  ed.  Where  the  declaration  alleged  that 
the  plaintiff  held  a  certain  office  and  place  of  trust  and  confidence,  to 
wit,  the  office  of  overseer  of  a  certain  common  field,  and  the  alleged 
libel  treated  the  plaintiff  as  holding  an  office  of  public  trust,  and 
charged  him  with  not  having  given  a  proper  account  of  the  public 
property,  the  libel  itself  was  held  to  be  evidence  of  the  introductory 
averment,  though  the  plaintiff's  own  witnesses  proved  that  the  office 
was  not  one  of  trust  and  confidence,  and  that  he  was  not  trusted  with 
the  receipt  of  money.     Baguall  v.  Underwood,  11  Price,  621. 

In  the  same  manner,  where  the  libel  admits  any  other  of  the  intro- 
ductory averments,  such  averments  need  not  be  proved.  Where  the 
declaration  averred  that  the  plaintiff  had  been  appointed  envoy  by 
certain  persons  exercising  the  powers  of  government  in  the  rcpul)lic 
or  state  of  Chili,  in  South  America,  the  libel,  stating  that  the  plaintiff 
had  colluded  to  obtain  money  in  the  matter  of  a  loan  for  the  republic 
or  state  of  Chili,  was  held  to  be  sufficient  proof  of  the  existence  of 
such  a  state.  Yrisarri  v.  Clement,  3  Bingh.  432,  HE.  C.  L.  So 
where  a  libel  alleged  that  certain  acts  of  outrage  had  been  committed, 


LIBEL.  881 

and  there  was  a  similar  introductory  averment,  it  was  held  that  the 
latter  re(iuired  no  proof.     R.  v.  Sutton,  4  M.  &  S.  548. 

If  an  introductory  averment  be  immaterial,  it  may  be  rejected  as 
surphisa^c,  and  need  not  be  proved  ;  and  in  general,  where  it  is  not 
*niatter  of  description,  it  is  divisible,  and  part  of  it  only  may  r:^7r.rj 
be  proved.  L   '  "'^ 

The  averment  that  the  libel  was  published  "of  and  concerning" 
tlie  prosecutor,  or  "  of  and  concerning  "  the  particular  matters  averred, 
must  be  proved  as  laid. 

The  declarations  of  spectators,  while  viewing  a  libellous  picture, 
publicly  exhibited  in  an  exhibition  room,  were  admitted  by  Lord 
Ellenborough  as  evidence  to  show  that  the  figures  portrayed  were 
meant  to  represent  the  parties  alleged  to  have  been  libelled.  Dubost 
V.  Beresford,  2  Campb.  512. 

Proof  of  publication — in  general.  All  who  are  concerned  in  pub- 
lishing a  libel  are  equally  guilty  of  a  misdemeanor ;  Bac.  Ab.  Libel 
(B.) ;  unless  the  part  they  had  in  the  transaction  was  a  lawful  or  an 
innocent  act.  3  Russ.  Cri.  211,  5th  ed. ;  but  the  writing  or  compos- 
ing of  a  libel,  without  a  publication  of  it,  is  not  an  offence.  The 
mere  writing  of  a  defamatory  libel,  which  the  party  confines  to  his 
own  closet,  and  neither  circulates  nor  reads  to  others,  is  not  punish- 
able. R.  V.  Paine,  5  Mod.  165,  167.  So  the  taking  a  copy  of  a  libel 
is  not  an  offence,  unless  the  person  taking  the  copy  publishes  it.  Cora. 
Dig.  Libel  (B.  2). 

Tlie  question  of  publication  is  ordinarily  one  of  mere  fact,  to  be 
decided  by  the  jury ;  but  this,  like  all  other  legal  and  technical  terms, 
involves  law  as  well  as  fact,  and  it  is  a  question  for  the  court  in 
doubtful  cases,  whether  the  facts,  when  proved,  constitute  a  publica- 
tion in  point  of  law.^     2  Stark,  on  Slander,  311,  2nd  ed. 

With  regard  to  the  acts  which  constitute  a  publication,  it  has  been 
held,  that  a  man  who  acts  as  a  servant  to  the  printer  of  the  libel,  and 
claps  down  the  press,  is  punishable,  though  it  do  not  appear  that  he 
clearly  knew  the  import  of  the  libel,  or  that  he  was  conscious  he  was 
doing  anything  wrong.  R.  v.  Clark,  1  Barnard,  304.  To  this  deci- 
sion, however,  Mr.  Serjeant  Russell  has,  with  much  reason,  added  a 
qucere.  3  Russ.  Cri.,  211,  5th  ed.  Production  of  a  libel,  and  proof  that 
it  is  in  the  handwriting  of  the  defendant,  afford  a  strong  presumption 
that  he  published  it.  R.  v.  Beare,  1  Lord  Raym.  414.  So  if  the 
manuscript  of  a  libel  be  proved  to  be  in  the  handwriting  of  tlie  de- 
fendant, and  it  be  also  proved  to  have  been  printed  and  published, 
this  is  evidence  to  go  to  a  jury  that  it  was  published  by  the  de- 
fendant, although  there  be  no  evidence  given  to  show  that  the 
printing  and  publication  were  by  the  direction  of  the  defendant. 
R.  V.  Lovett,  9  C.  &  P.  243,  38  E.  C.  L.     But  the  defendant  may 

1  Resp.  V.  Davies,  3  Yeates,  128  ;  Southwick  v.  Stevens,  10  Johns.  442.     S. 

That  defendant  threatened  to  publish  libellous  matter  of  the  plaintiff  and  that  it 
was  afterwards  published  is  some  evidence  from  which  a  jury  may  infer  that  defend- 
ant was  the  author  of  the  article.     Bent  v.  Minik,  46  Iowa,  576. 

56 


882  LIBEL. 

show  that  the  publication  was  without  his  authority  or  knowledge, 
see  post,  p.  707.  So  printing  a  libel,  unless  qualified  by  circum- 
stances, will,  primd  facie,  be  understood  to  be  a  publishing,  for  it 
must  be  delivered  to  the  compositor  and  the  other  subordinate  work- 
men. Per  cur.  Baldwin  v.  Elphinstone,  2  W.  Bl,  1037.  A  delivery 
of  a  newspaper  (containing  a  libel)  according  to  the  provisions  of  the 
repealed  statute  38  Geo.  3,  c.  78,  to  the  officer  of  the  stamp-office,  has 
been  held  a  [)ublication,  though  such  delivery  was  directed  by  the 
statute,  for  the  officer  had  an  opportunity  of  reading  the  libel.  R.  v. 
Amphlitt,  4  B.  &  C.  25, 10  E.  C.  L. ;  see  also  Cook  v.  Ward,  6  Bingh.  409, 
19  E.  C.  L.  If  a  letter  containing  a  libel  have  the  post-mark  upon  it, 
this  is  primd  facie  evidence  of  its  having  been  published.  Warren 
V.  Warreu,  1  C.  M.  &  R.  360;  4  Tyr.  850;  Shipley  v.  Todhunter,  7 
C.  &  P.  680,  32  E.  C.  L.  It  is  said  by  Mr.  Justice  Fortesque  to 
^-^  ,-|  have  been  ruled  that  the  finding  of  a  libel  on  a  ^bookseller's 
-I  shelf  is  a  publication  of  it  by  the  bookseller.  R.  v.  Dodd,  2 
Sess.  Ca.  33 ;  Holt's  L.  of  L.  248,  2nd  ed.  The  reading  of  a  libel 
in  the  presence  of  another,  without  knowing  it  to  be  a  libel,  with  or 
without  malice,  does  not  amount  to  a  publication.  4  Bac.  Ab.  458 ; 
Holt's  L.  of  L.  282,  2nd  ed.  But  if  a  person  who  has  either  read  a 
libel  himself,  or  heard  it  read  by  another,  afterwards  maliciously  reads 
or  repeats  any  part  it  to  another,  he  is  guilty  of  an  unlawful  publica- 
tion of  it.     Hawk.  P.  C.  b.  2,  c.  73,  s.  10. 

Although  in  civil  cases,  publication  of  a  libel  to  the  party  libelled 
is  not  sufficient  to  support  an  action,  yet  in  criminal  cases  such  publi- 
cation will  maintain  an  indictment  or  information.^  Hawk.  P.  C.  b. 
1,  c.  73,  s.  1 1  ;  3  Russ.  Cri.,  213,  5th  ed. ;  R.  v.  Wegener,  2  Stark.  N.  P. 
C  245,  3  E.  C  L.  But  such  publication  must  be  alleged  to  have 
been  sent,  with  intent  to  provoke  the  prosecutor  to  a  breach  of  the 
peace,  and  not  with  intent  to  injure  him  in  his  profession,  etc.  R.  v. 
Wegener,  supra. 

Where  the  libel  is  in  a  foreign  language,  and  it  is  set  out  in  the  in- 
dictment, both  in  the  original  and  in  a  translation,  the  translation 
must  be  proved  to  be  correct.  In  a  case  of  this  kind,  an  interpreter 
being  called,  read  the  whole  of  that  which  Avas  charged  to  be  a  libel 
in  the  original,  and  then  the  translation  was  read  by  the  clerk  at  nisi 
prius.     R.  V.  Peltier,  Selw.  N.  P.  917. 

Where  the  libel  has  been  printed  by  the  directions  of  the  defendant, 
and  he  has  taken  away  some  of  the  impressions,  a  copy  of  those  left 
with  the  printer  may  be  read  in  evidence.  R.  v.  Watson,  2  Stark. 
N.  P.  C.  129,  3  E.  C.  L..  In  order  to  show  that  the  defendant  had 
caused  a  libel  to  be  inserted  in  a  newspaper,  a  reporter  to  the  paper 
was  called,  who  proved  that  he  had  given  a  written  statement  to  the 
editor,  the  contents  of  which  had  been  communicated  by  the  defend- 
ant for  the  purpose  of  publication  ;  and  that  the  newspaper  produced 
was  exactly  the  same,  with  the  exception  of  one  or  two  slight  altera- 
^  tions  not  affecting  the  sense ;  it  was  held  that  what  the  report  pub- 

^  Swindle  v.  State,  2  Yerger,  581 ;  State  v.  Avery,  7  Conn.  266.    S. 


LIBEL.  883 

lished  might  be  considered  as  published  by  the  defendant,  but  that  the 
newspaper  could  not  be  read  in  evidence,  without  produciing  the  writ- 
ten stiitement  delivered  by  the  reporter  to  the  editor.  Adams  v.  Kelly, 
Ry.  &  Moo.  N.  P.  C.  157  ;  and  see  R.  v.  Cooper,  8  Q.  B.  533,  55 
E.  C.  L. ;  15  L.  J.,  Q.  B.  206;  and  Fryer  v.  Gathercole,  4  Ex.  262  ; 
18  L.  J.,  Ex.  389. 

AVhere  a  libel  is  printetl,  the  sale  of  each  t^opy  is  a  distinct  publica- 
tion, and  a  fresh  otfence ;  and  a  conviction  or  acquittal  on  an  indict- 
meut  for  publishing  one  copy,  will  be  no  bar  to  an  indictment  for 
publishing  another  copy.  R.  v.  Carlile,  1  Chitty,  451  ;  2  Stark,  on 
Slander,  320,  2nd  ed. 

Proof  of  publication — of  libels  contained  in  newspapers.     The 

proof  of  the  publication  of  libels  contained  in  newspapers  was  form- 
erly facilitated  by  the  38  Geo.  3,  c.  78,  and  subsequently  by  the  6  &  7 
Will.  4,  c.  76  (U.  K.),  which  in  turn  has  been  repealed  by  the  33  &  34 
Vict.  c.  99.  Section  19  of  the  6  &  7  Will.  4,  c.  76,  had  however  been 
embodied  in  32  &  33  Vict.  c.  24,  sched.  2,  and  therefore  is  still  in  force, 
by  that  section.  If  any  person  shall  file  any  bill  in  any  court  for  the 
discovery  of  the  name  of  any  person  concerned  as  printer,  publisher, 
or  proprietor  of  any  newspaper,  or  of  any  matters  relative  to  the 
printing  or  publishing  of  any  newspaper,  in  order  the  more  effectually 
to  bring  or  carry  on  any  suit  or  action  for  damage  alleged  to  have 
*been  sustained  by  reason  of  any  slanderous  or  libellous  matter  r^yrvtr 
contained  in  any  such  newspaper  respecting  such  person,  it  shall  L 
not  be  lawful  for  the  defendant  to  plead  or  demur  to  such  bill,  but 
such  defendant  shall  be  compellable  to  make  the  discovery  required, 
provided  always  that  such  discovery  shall  not  be  made  use  of  as  evi- 
dence or  otherwise  in  any  proceeding  against  the  defendant,  save  only 
in  that  proceeding  for  which  the  discovery  is  made. 

The  Newspaper  and  Libel  Registration  Act,  1881  (44  &  45  Vict.  c. 
60),  enacts  by  s.  1,  The  word  "  newspaper  "  shall  mean  any  paper  con- 
taining public  news,  intelligence  or  occurrences,  or  any  remarks  or 
observations  therein  printed  for  sale,  and  published  in  England  or 
Ireland  periodically  or  in  parts  or  numbers,  at  intervals  not  exceeding 
twenty-six  days  between  the  publication  of  any  two  such  papers,  parts, 
or  numbers.  Also  any  paper  printed  in  order  to  be  dispersed  and  made 
public,  weekly  or  oftener,  or  at  intervals  not  exceeding  twenty-six 
days,  containing  only  or  principally  advertisements. 

The  word  "  proprietor "  shall  mean  and  include  as  well  the  sole 
proprietor  of  any  newspaper  as  also,  in  the  case  of  a  divided  proprie- 
torship, the  persons  who  as  partners  or,  otherwise,  represent  and  are 
responsible  for  any  share  or  interest  in  the  newspaper  as  between  them- 
selves and  the  persons  in  like  manner  representing  or  responsible  for 
the  other  shares  or  interests  therein,  and  no  other  person. 

By  s.  2.  Any  report  published  in  any  newspaper  of  the  proceed- 
ings of  a  public  meeting  shall  be  privileged  if  such  meeting  was 
lawfully  convened  for  a  lawful  purpose,  and  open  to  the  public,  and 
if  such  report  was  fair  and  accurate,  and  published  without  malice, 


884  LIBEL. 

and  if  the  publication  of  the  matter  complained  of  was  for  the  public 
benefit,  provided  always  that  the  protection  intended  to  be  afforded 
by  this  section  shall  not  be  av^ailable  as  a  defence  in  any  proceeding 
if  the  plaintiflP  or  prosecutor  can  show  that  the  defendant  has  refused 
to  insert  in  the  newspaper  in  which  the  report  containino-  the  matter 
complained  of  appeared,  a  reasonable  letter  or  statement  of  expla- 
nation or  contradiction  by  or  on  behalf  of  such  plaintiff  or  prose- 
cutor. 

By  s.  3.  No  criminal  prosecution  shall  be  commenced  against  any 
proprietor,  publisher,  editor,  or  any  person  responsible  for  the  publi- 
cation of  a  newspaper  for  any  libel  published  therein,  without  the 
written  fiat  or  allowance  of  the  director  of  public  prosecutions  in 
England,  or  Her  Majesty's  Attorney-General  in  Ireland,  being  first 
had  and  obtained. 

The  Queen  v.  Yates,  11  Q.  B.  D.  750,  decided  that  s.  3  of  the  44  & 
45  Vict,  c,  60,  does  not  apply  to  criminal  informations  for  libel  filed 
by  the  order  of  the  court  at  the  instance  of  private  prosecutors ; 
neither  does  it  apply  to  criminal  informations  filed  by  the  Attorney- 
General  ;  but  it  applies  to  prosecutions  in  the  ordinary  sense  of  the 
term,  viz.,  a  criminal  charge  made  before  a  magistrate  or  a  grand  jury. 
This  question  will,  however,  shortly  be  argued  before  the  Court  of 
Appeal. 

The  fiat  of  the  director  of  public  prosecutions  required  by  s.  3  of  44 
&  45  Vict.  c.  60,  as  a  preliminary  to  a  prosecution  under  the  Act  is 
entirely  discretionary,  and  the  High  Court  will  not  interfere.  Ex  parte 
Hubert,  15  Cox,  C.  C.  166. 

"  I  hereby  allow  the  prosecution  of  the  publisher,  proprietor,  or 
editor  of  the  Freethinker,  or  any  other  person  responsible  for  the  pub- 
lication therein  of  blasphemous  articles  between  the  dates  of  INIarch 
*7nn  *^^'  ^"^^  ^^^^y  ^^^  1882,"  was  held  to  be  a  sufficient  fiat  within 
'^^^  the  Act.  R.  V.  Bradlaugh,  15  Cox,  C.  C.  217. 
By  ss.  4  &  5,  inquiry  may  be  made  by  a  court  of  summary  juris- 
diction as  to  the  libel  being  for  the  public  benefit  or  being  true,  and 
the  court,  if  they  think  a  jury  would  acquit,  may  dismiss  the  case,  or 
if  they  think  the  libel  was  of  a  trivial  character,  they  may  ask  the  de- 
fendant if  he  consents  to  being  dealt  with  summarily. 
The  Vexatious  Indictments  Act  applies,  see  ante,  p.  192. 
The  4th  section  of  the  Act  appears  to  have  been  inserted  in  conse- 
quence of  the  decision  in  R.  v.  Garden,  5  Q.  B.  D.  1,  49  L.  J.,  M.  C. 
1,  that  a  magistrate  has  no  jurisdiction  to  inquire  into  the  truth 
of  a  libel.  In  R.  v.  Duffey,  2  Cox,  C.  C.  45,  9  Ir.  L.  Rep.  329, 
post,  p.  715,  it  was  held  that  Lord  Campbell's  Act,  6  &  7  Vict, 
c,  96,  s.  6,  'post,  p.  715,  has  no  application  to  seditious  libels,  and  the 
same  has  been  held  with  regard  to  s.  4  of  the  present  statute,  as  it  is 
said  to  be  absurd  to  suppose  sedition  to  be  for  the  benefit  of  the 
public.  R.  V.  O'Brien,  15  Cox,  C.  C.  (Irish)  180.  It  seems  to  have 
been  assumed  and  not  disputed  that  the  libel  comj)lained  of  was  sedi- 
tious. It  is  also  to  be  remark(^d  that  it  is  said  in  R.  v.  Duffey,  supra, 
that  Lord  Campbell's  Act,  s.  6,  did  not  apply  to  blasphemous  libels, 


LIBEL.  88^ 

and  Lord  Coleridge,  In  R.  v.  Bradlaiigh,  15  Cox,  C.  C.  217,  at  p.  226, 
said  that  there  were  some  sections  as  to  which  a  serious  argument 
might  be  raised  whether  they  had  any  application  to  the  case  of  a 
blasphemous  libel. 

By  subsequent  sections  of  the  Act,  provision  is  made  for  the  regis- 
tration of  the  names  of  newspaper  proprietors,  and  by  s.  15,  copies 
of  entries  in  and  contracts  from  the  register  are  made  evidence. 
See  ante,  "  Documentary  Evidence,"  p.  1 74. 

After  the  passing  of  the  38  Geo.  3,  c.  78,  now  repealed,  the  pro- 
duction of  a  certified  copy  of  the  affidavit  and  of  a  newspaper  corres- 
ponding in  the  title  and  in  the  names  and  descriptions  of  printer  and 
publisher  with  the  newspaper  mentioned  in  the  affidavit,  was  sufficient 
evidence  of  publication.  Mayne  v.  Fletcher,  9  B.  &  C.  382,  17  E.  C. 
L.;  R.  V.  Hunt,  31  State  Trials,  375.  But  where  the  affidavit  and 
the  newspaper  vary  in  the  place  of  residence  of  the  party,  Murray  v. 
Souter,  cited  6  Biug.  414,  19  E.  C.  L.,  or  in  the  name  of  the  printing 
place,  R.  u.  Francey,  2  A.  &  E.  49,  29  E.  C.  L.,  it  was  insufficient. 
See  as  to  what  was  sufficient  evidence  of  the  identity  of  the  newspaper 
under  the  6  &  7  Will.  4,  c.  76,  s.  8  ;  Baker  v.  Wilkinson,  Carr.  &  M. 
399,  41  E.  C.  L. ;  see  also  R.  v.  Woolmer,  12  A.  &  E.  422,  40  E.  C. 
L.;  Duke  of  Brunswick  v.  Harmer,  3  C.  &  K.  10 ;  14  Q.  B.  110,  68 
E.  C.  L.;  19  L.  J.,  Q.  B.  10 ;  and  Gathercole  v.  Miall,  15  M.  &  W. 
319. 

The  purchase  of  a  copy  of  the  newspaper  at  the  office  many  years 
after  the  date  of  the  libel  was  held  to  be  sufficient  proof  of  publica- 
tion.    Duke  of  Brunswick  v.  Harmer,  supra. 

The  statute  was  held  to  apply  to  motions  for  criminal  informations, 
R.  V.  Donnison,  4  B.  &  Ad.  698,  24  E.  C  L.;  R.  v.  Francey,  supra. 
It  seems  to  have  been  held  that  where  the  printer  swore  that  a  printed 
copy  of  a  newspaper  was  a  copy  of  an  issue  published  to  the  world, 
such  copy  of  the  newspaper  may  be  given  in  evidence,  though  it  is  not 
one  of  the  copies  published,  and  though  it  be  unstamped.  R.  v. 
Pearce,  1  Peake,  106. 

Proof  of  publication — ^by  admission  of  the  defendant.     On  an 

information  for  a  libel,  the  Avitness  who  produced  it  stated,  that 
he  showed  it  to  the  defendant,  who  admitted  that  he  was  the  author 
*of  it,  errors  of  the  press  and  some  small  variances  only  ex-  r^nr^ij 
cepted.  It  was  objected  that  this  evidence  did  not  entitle  the  L 
prosecutor  to  read  the  book,  the  admission  not  being  absolute  ;  but 
Pratt,  C.  J.,  allowed  it  to  be  read,  and  said  he  would  put  it  to  the  de- 
fendant to  prove  material  v^ariances.  R.  ^^  Hall,  1  Str.  416.  An  ad- 
mission of  the  signature  to  a  libel  is  no  admission  of  its  having  been 
published  in  a  particular  county.  Case  of  the  Seven  Bishops,  12 
How.  St.  Tr.  183.  An  admission  of  being  the  publisher  of  a  peri- 
odical work  cannot  be  extended  beyond  the  date  of  such  admission. 
M'Leod  V.  Wakley,  3  C.  &  P.  311,  14  E.  C.  L. 

Publication — constructive  publication.     It  was  well  established 


886  LIBEL. 

at  common  law  that,  in  order  to  render  a  party  guilty  of  publishing  a 
libel,  it  was  not  necessary  that  he  should  be  the  actual  publisher  of  it, 
or  that  he  should  even  have  a  knowledge  of  the  publication ;  not  only 
was  a  person  who  procured  another  to  publish  a  libel  himself  guilty 
of  the  oifence.  Hawk.  P.  C.  b.  1,  c.  73,  s.  10,  but  a  bookseller  or  pub- 
lisher, whose  servant  published  a  libel,  was  criminally  answerable  for 
that  act,  though  it  was  done  without  his  knowledge.  The  leading  case 
on  this  subject  is  that  of  11.  v.  Almon,  5  Burr.  2686.  The  defendant, 
a  bookseller,  was  convicted  of  publishing  a  libel  in  a  magazine.  The 
proof  of  the  publication  was,  that  the  magazine  M^as  bought  at  his 
shop.  A  new  trial  was  moved  for  on  the  ground  that  the  libel  had 
been  sent  to  the  defendant's  shop,  and  sold  there  by  a  boy,  without 
his  knowledge,  privity,  or  approbation  ;  but  the  court  were  clear  and 
unanimous  in  their  opinion,  that  this  libel,  being  bought  in  the  shop 
of  a  common  known  bookseller'  and  publisher,  importing,  by  its  title- 
page,  to  be  printed  by  him,  was  a  sufficient  p7'imd  facie  evidence  of  its 
being  published  by  him, — not  indeed  conclusive,  because  he  might 
have  contradicted  it,  if  tlie  facts  would  have  borne  it,  by  contrary  evi- 
dence. The  court  regarded  the  matters  urged  as  grounds  for  a  new 
trial,  merely  as  an  extenuation  of  the  offence.  So  Lord  Kenyon  ruled, 
that  the  proprietor  of  a  newspaper  was  answerable,  criminally  as  well 
as  civilly,  for  the  acts  of  his  servants  or  agents  in  misconducting  the 
paper ;  adding  that  this  was  not  his  opinion  only,  but  that  of  Lord 
Hale,  Justice  Powell,  and  Justice  Foster ;  that  it  Avas  the  old  received 
law  for  above  a  century,  and  was  not  to  be  broken  in  upon  by  any 
new  doctrine  upon  libels.  R.  v.  Walter,  3  Esp.  21.  And  the  same 
rule  was  laid  down  by  Lord  Ellenborough.  R.  v.  Cuthell,  R.  v. 
White ;  Holt,  Law  of  Libel,  287  ;  2  Stark,  on  Slander,  33,  2nd  ed.; 
R.  V.  Gutch,  Moo.  &  M.  433. 

It  did  not  appear  to  be  well  settled  whether  a  publisher,  by  whose 
servant  a  libel  had  been  sold,  might  exonerate  himself  from  the  con- 
sequences of  that  act,  by  showing  that  he  had  himself  in  noway  been 
accessory  to  the  publication.  If  the  libellous  work  had  been  sold  by 
the  servant  in  the  regular  performance  of  his  duty  towards  his  em- 
ployer, the  latter  would  be  answerable,  although  he  should  prove 
that  in  fact  he  was  absent  from  the  slK)p  at  the  time,  and  that  he  was 
wholly  ignorant  of  the  contents  of  tlie  l)Ook,  and  innocent  of  any 
intent  to  disseminate  the  libel.  R.  v.  Dodd,  2  Sess.  Ca.  33.  If,  on 
the  contrary,  the  book  was  not  sold  by  the  servant  in  the  ordinary 
course  of  his  employment,  but  clandestinely  brought  by  him  to  his 
master's  shop,*and  vended  there;  in  such  case  the  master  would  not 
have  been  held  guilty  of  the  publication.  In  R.  v.  Almon,  siipray 
the  court  appear  to  have  treated  the  publication  by  the  servant  as 
*7081  *pi'GSumptive  evidence  only  of  a  publication  as  against  the 
-■  master,  who  would  be  entitled  to  rebut  such  presumption  ;  and 
in  one  case  it  seems  to  have  been  decided  that  if  a  printer  is  confined 
in  prison,  to  which  his  servants  have  no  access,  and  they  publish  a 
libel  without  his  privity,  the  publication  of  it  shall  not  be  imputed  to 
him.     R.  V.  Woodfall,  Essay  on  Libels,  18.     See  R.  v.  Salmon,  B.  R. 


LIBEL.  887 

H.  T.  1777  ;  Hawk.  P.  C.  b.  1,  c.  73,  s.  10  (n),  7th  ed.  The  defend- 
ant may  rebut  tlie  presumption  by  evidence  that  the  libel  was  sold 
contrary  to  his  orders,  or  clandestinely,  or  that  some  deceit  or  surprise 
was  practised  upon  him,  or  that  he  was  absent  under  circumstances 
whicli  entirely  negatived  any  presumption,  or  privity,  or  connivance.' 
2  Starkic  on  Slander,  34,  2nd  ed.  This  being  the  state  of  the  com- 
mon law.  Lord  Campbell's  Act  (6  &  7  Vict.  c.  90)  was  passed.  By 
sect.  7  of  that  Act,  where  a  presumptive  case  of  publication  against 
the  defendant  by  the  act  of  another  person  by  his  authority  was  set 
lip,  the  defendant  might  rebut  it  by  showing  that  the  publication  was 
without  his  authority,  consent,  or  knowledge,  and  did  not  arise  from 
M'ant  of  duo  care  or  caution  on  his  part  (see  the  section,  post,  p.  716). 
At  the  trial  of  a  criminal  information  against  the  defendants  for  a 
libel  published  in  a  newspaper,  of  which  they  were  proprietors,  it  was 
proved  that  each  of  them  managed  a  different  department  of  the  news- 
paper, but  that  the  duty  of  editing  what  was  called  the  literary  de- 
partment was  left  by  them  entirely  to  an  editor  whom  they  had  ap- 
pointed named  G.  The  libel  in  question  was  inserted  in  the  paper  by 
G.  without  the  express  authority,  consent,  or  knowledge  of  the  defend- 
ants. It  was  held  by  Cockburn,  C  J.,  and  Lush,  J.,  that  it  was  a 
question  for  the  jury  whether  the  libel  was  published  without  the  de- 
fendants' authority,  consent,  or  knowledge,  and  whether  the  publication 
arose  from  any  want  of  due  care  and  caution  on  their  part.  Cockburn, 
C.  J.,  said  that  sect.  7  was  intended  to  meet  the  anomaly  of  holding  a 
man  criminally  responsible  for  something  in  which  he  had  taken  no 
part,  and,  in  fact,  of  which  he  was  not  even  cognizant.  Mellor,  J., 
dissented,  holding  that  the  defendants  having,  for  their  own  benefit, 
employed  an  editor  to  manage  a  particular  department  of  the  news- 
paper, and  given  him  full  discretion  as  to  the  articles  to  be  inserted  in 
it,  must  be  taken  to  have  consented  to  the  publication  of  the  libel  by 
him,  and  that  6  &  7  Vict.  c.  96,  s.  7,  had  no  application  to  the  facts 
proved.  R.  v.  Holbrook,  3  Q.  B.  D.  60 ;  47  L.  J.,  Q.  B.  35.  The 
case  was  sent  down  for  a  new  trial  for  the  jury  to  determine  the  above 
questions  ;  on  a  motion  for  a  second  new  trial,  it  was  held  by  the 
same  judges,  Mellor,  J.,  dissenting,  that  the  general  authority  given 
to  G.  was  not  per  se  evidence  that  the  defendants  had  authorized 
or  consented  to  the  libel,  s.  c.  4  Q.  B.  D.  42 ;  48  L.  J.  Q.  B. 
113. 

Where  the  libel  is  published  by  an  agent  of  the  defendant,  the 
authority  of  that  agent  must  be  strictly  proved.  In  the  case  of  book- 
sellers and  publishers,  proof  that  the  party  actually  vending  the  libel 
was  a  servant  in  the  way  of  their  business,  is  sufficient ;  for  in  such 
case  an  authority  to  sell  will  be  implied,  but  it  is  not  so  with  regard 
to  other  persons.  Thus,  where  it  appeared  that  the  libel  in  question 
was  in  the  handwriting  of  the  defendant's  daughter,  who  was  usually 
employed  by  him  to  write  his  letters  of  business,  but  there  was  no 
evidence  that  the  defendant  had  authorized  her  to  write  this  particular 

1  Commonwealtli  v.  Buckingham,  2  Wheel.  C.  C.  198.    S. 


888  LIBEL. 

document,  it  was  held  to  be  no  evidence  of  publication  as  against  him. 
Harding  v.  Greening,  1  B.  Moore,  477. 

*7nQl  *Proof  of  innuendoes.  Where,  in  order  to  bring  out  the  libel- 
J  lous  sense  of  the  words,  innuendoes  are  inserted  in  the  indict- 
ment, they  must,  if  material,  be  proved  by  witnesses  acquainted  with 
the  parties,  and  with  the  transaction  to  be  explained.  It  is  sufficient 
if  such  witnesses  speak  in  the  first  instance  as  to  their  belief  with  re- 
gard to  the  intended  application  of  the  words ;  the  grounds  of  such 
belief  may  be  inquired  into  on  cross-examination.^  2  Stark,  on  Slander, 
51,  2nd  ed.  If  the  witness  derives  his  conclusion  from  the  terms  of 
another  libel,  with  the  publication  of  which  the  defendant  is  not  con- 
nected, this  is  not  sufficient.  Bourke  v.  Warren,  2  C.  &  P.  307,  12 
E.  C.  L.  If  a  good  innuendo,  ascribing  a  particular  meaning  to  cer- 
tain words,  is  not  supported  in  evidence,  the  party  will  not  be  per- 
mitted to  ascribe  another  meaning  to  those  words.  Williams  v.  Stott, 
1  Crom.  &  M.  675 ;  Archbishop  of  Tuam  v.  Robinson,  5  Bingh.  17, 
15  E.  C.  L.;  but  see  Harvey  v.  French,  1  Crom.  &  M.  11.  Thus, 
where  the  words  in  fact  imputed  either  a  fraud  or  a  felony,  but  by  the 
innuendo  were  confined  to  the  latter.  Lord  Ellenborough  ruled  that  the 
plaintiff  must  prove  that  they  were  spoken  in  the  latter  sense.  Smith 
V.  Carey,  3  Campb.  461.  If  a  libel  contains  blanks,  the  jury  ought  to 
acquit  the  defendant,  unless  they  are  satisfied  that  those  blanks  are 
filled  up  in  the  indictment  according  to  the  sense  and  meaning  of  the 
writer.  Per  Lord  Mansfield,  R.  v.  Almon,  5  Burr.  2686.  It  is  said 
by  Tindal,  C.  J.,  that  where  words  spoken  import  in  themselves  a 
criminal  charge,  and  the  innuendo  introduces  matter  which  is  merely 
useless,  it  may  be  rejected  as  surplusage.  Day  v.  Robinson,  1  A.  & 
E.  554,  28  E.  C.  L.;  see  also  Williams  v.  Gardiner,  Tyr.  &  G.  578; 
1  M.  &  W.  245  J  West  v.  Smith,  Tyr.  &  G.  825.  And  see  Hoare  v. 
Silverlocke,  12  Q.  B.  625,  64  E.  C.  L. 

Proof  of  malice.  Where  a  man  publishes  a  writing,  which  upon 
the  face  of  it  is  libellous,  the  law  presumes  that  he  does  so  with  that 
malicious  intention  which  constitutes  au  offence,  and  it  is  unnecessary 
on  the  part  of  the  prosecution  to  give  evidence  of  any  circumstances 
from  which  malice  may  be  inferred.  Thus  it  was  said  by  Lord  Ten- 
terdcn,  that  a  person  who  publishes  what  is  calumnious  concerning  the 
character  of  another,  must  be  presumed  to  have  intended  to  do  that 
which  the  publication  is  necessarily  and  obviously  intended  to  effect, 
unless  he  can  show  the  contrary.  R.  v.  Harvey,  2  B.  &  C.  257,  9  E. 
C.  L. ;  R.  V.  Bardett,  4  B.  &  Aid.  95,  6  E.  C.  L.  In  such  case  it  is 
incumbent  upon  the  defendant,  if  he  seeks  to  discharge  himself  from 
the  consequences  of  the  publication,  to  show  that  it  was  made  under 
circumstances  which  justify  it. 

'  Van  Vechten  v.  Hopkins,  5  Johns.  211 ;  Commonwealth  v.  Keenan,  67  Pa.  St. 
203.    S. 

A  witness  cannot  give  liis  opinion  as  to  the  person  meant  in  a  libel.  People  v. 
Parr,  42  Hun,  (N.  Y.)  3i;5. 


LIBEL.  889 

It  is,  however,  frequently  necessary,  upon  prosecutions  for  libel, 
■where  the  expressions  are  ambiguous,  or  the  intentions  of  the  dclond- 
ant  doubtful,  to  adduce  evidence  for  the  purpose  of  showing  the 
malice  Avhich  prompted  the  act  of  publication.  Thus,  where  tlie  occa- 
sion of  the  publication  would,  pn?M/acic',  justify  the  defendant,  yet, 
if  the  libel  be  false  and  malicious,  it  is  an  offence ;  in  such  case  evi- 
dence of  the  malice  must  be  given  on  the  part  of  the  prosecution  to 
rebut  the  presumed  justification.  "  AVhen;  the  material  question," 
says  Mr.  Starkie,  "  is  whether  the  defendant  was  justified  by  the 
occasion,  or  acted  from  express  malice,  it  seems,  in  principle,  that  any 
circumstances  are  admissible  which  can  elucidate  the  transaction,  and 
enable  the  jury  correctly  to  conclude  whether  the  defendant  acted 
fairly  and  honestly,  or  maid  fide  and  vindictively,  for  the  purpose  of 
causing  evil  consequences."  2  Stark,  on  Slander,  55,  2nd  cd.  Upon 
*tliis  principle,  in  an  action  for  libel  contained  in  a  weekly  paper,  p^-.,  ^ 
evidence  was  allowed  to  be  given  of  the  sale  of  other  papers  with  •- 
the  same  title  at  the  same  office,  for  the  purpose  of  showing  that  the 
papers  were  sold  deliberately,  and  in  the  regular  course  of  circulation, 
and  vended  in  regular  transmission  for  public  perusal.  Plunkett  v. 
Cobbctt,  5  Esp.  136.  So  where,  on  the  trial  of  an  action  for  libel  con- 
tained in  a  newspaper,  subsequent  publications  by  the  defendant  in  the 
game  paper  were  tendered  in  evidence  to  show  quo  animo  the  defend- 
ant published  the  libel  in  question.  Lord  Ellenborough  said,  no  doubt 
they  would  be  admissible  in  the  case  of  an  indictment,  Stuart  v. 
Lovel,  2  Stark.  N.  P.  C  93.  Again,  in  the  trial  of  an  action  against 
the  editor  of  a  monthly  publication  for  a  libel  contained  in  it,  articles 
published  from  month  to  month  alluding  to  the  action,  and  attacking 
the  plaintiff,  are  admissible  to  show  quo  animo  the  libel  was  published, 
and  that  it  was  published  concerning  the  plaintiff.  Chubb  v.  Westley, 
6  C.  &  P.  436,  25  E.  C.  L.  In  Barrett  v.  Long  (in  error),  3  H.  of 
L.  Cas.  395,  other  publications  of  the  defendant  going  back  more  than 
six  years  before  the  publication  complained  of,  were  held  to  be  ad- 
missible to  prove  malice.  So  it  was  held  by  Lord  Ellenborough,  that 
any  words  or  any  act  of  the  defendant  are  admissible,  in  order  to 
show  quo  animo  he  spoke  the  words  which  are  the  subject  of  the 
action.  Rustcl  v.  Macquister,  1  Campb.  49.  So  either  the  prosecutor 
or  the  defendant  is  entitled  to  have  extracts  read  from  different  parts 
of  the  same  paper  or  book  which  contains  the  libel,  relating  to  the 
same  subject.     R.  v.  Lambert,  2  Campb.  398. 

When  the  publication  is  primd  facie  excusable  on  account  of  the 
cause  of  writing  it,  as  in  the  case  of  servants'  characters,  or  confiden- 
tial advice,  or  communications  to  persons  who  ask  it  or  have  a  right 
to  expect  it,  malice  in  fact  must  be  proved.^  Per  Bavley,  J.,  Bromage 
V.  Prosser,  4  B.  &  C.  256,  10  E.  C.  L. ;  and  see  M'Pherson  v.  Daniels, 
10  B.  &  C.  272,  21  E.  C.  L.     "  Where  a  man  has  a  right  to  make  a 

'  A  publication  made  by  a  circular  issued  by  a  mercantile  agency  to  its  subscribers 
is  not  privileged ;  although  it  might  be  otherwise  if  made  only  to  tliose  having  deal- 
ings with  H).G  person  to  whom  it  relates.  Commonwealth  v.  Stacey,  1  Campb. 
114.    S. 


890  LIBEL., 

communication,  you  must  either  show  malice  intrinsically  from  the 
language  of  the  letter,  or  prove  express  malice."  Per  Parke,  B., 
AVright  V.  Woodgate,  Tyr.  &  G.  13.^ 

Proof  of  intent.  Where  the  malicious  intent  of  the  defendant  is 
by  averment  in  the  indictment,  pointed  to  a  particular  individual,  or 
to  a  particular  act  or  offence,  the  averment  must  be  proved  as  laid. 
Thus,  where  the  indictment  alleged  a  publication  of  a  libel  with 
intent  to  disparage  and  injure  the  prosecutor  in  his  j)rofcssion  of  an 
attorney,  it  was  held  that  proof  of  a  publication  to  the  pnjsecutor  only 
did  not  maintain  the  indictment,  and  that  the  intent  ought  to  have 
been  averred  to  provoke  the  prosecutor  to  a  breach  of  the  peace.  R. 
V.  Wegener,  1  Stark.  N.  P.  C.  245, 3  E.  C.  L.  The  allegation  of  intent 
is  divisible,  ante,  p.  87. 

Venue.  The  libel  must  be  proved  to  have  been  published  in  the 
county  in  which  the  venue  is  laid.  Where  the  libel  is  once  pub- 
lished, the  party  is  guilty  of  a  publication  in  every  county  in  which 
such  libel  is  afterwards  published.^  R.  v.  Johnson,  7  East,  G5 ;  B.  N. 
P.  6.  So  if  he  sent  it  to  be  printed  in  London,  it  is  his  act  if  the 
publication  is  there.  Upon  an  information  for  a  libel,  in  the  county 
of  Leicester,  it  appeared  that  it  was  written  in  that  county,  and  deliv- 
ered to  a  person  who  delivered  it  to  B.  (who  was  not  called)  in 
Middlesex.  It  was  inclosed  in  an  envelope,  but  there  was  no  trace 
of  a  seal.  The  judge  directed  the  jury,  that  as  B.  had  it  open,  they 
^-. .  -|  *might  presume  that  he  received  it  open,  and  that  as  the  defend- 
-■  ant  wrote  it  in  the  county  of  Leicester,  it  must  be  presumed 
that  he  received  it  in  that  county.  The  defendant  having  been  found 
guilty,  it  was  urged  on  a  motion  for  a  new  trial,  that  there  was  no  evi- 
dence of  a  publication  in  Leicestershire  ;  but  the  Court  of  King's 
Bench  {disa.  Bayley,  J.)  held  that  the  direction  of  the  judge  was  proper, 
and  that  if  the  delivery  open  could  not  be  presumed,  a  delivery  sealed, 
with  a  view  to  and  for  the  purpose  of  publication,  was  a  publication ; 
and  they  held  that  there  was  sufficient  to  presume  some  delivery, 
either  open  or  sealed,  in  the  county  of  Leicester.  R.  v.  Burdett,  4 
B.  &  Aid.  95,  6  E,  C.  L.  In  the  above  case  the  question  was  discussed 
whether  it  was  essential  that  the  whole  offence  should  be  proved  to 
have  been  committed  in  the  county  in  wiiich  the  venue  was  laid. 
Holroyd,  J.,  expressed  an  opinion  that  the  composing  and  writing  a 
libel  in  the  county  of  L.,  and  afterwards  publishing  it,  though  that 
publication  was  not  in  L.,  was  an  offence  which  gave  jurisdiction 
to  a  jury  of  the  county  of  L.  (R.  v.  Beer,  2  Salk.  417 ;  Carth.  409  ; 
R.  V.  Knell,  Barnard,  K.  B.  305),  and  that  the  composing  and 
writing  Avith  intent  afterwards  to  publish  was  a  misdemeanor ;  but 

^  In  privileged  communications  malice  must  be  proved  intrinsically.  Discussion 
by  the  newspapers  of  a  candidate's  backers  is  privileged  by  the  Pennsylvania  Consti- 
tution of  1874.     Commonwealth  v.  McClure,  1  County  Ct.  Rep.  (Pa.)  207. 

'  So  in  the  case  of  a  newspaper  printed  in  one  State  and  circulated,  in  another. 
Commonwealth  v.  Blanding,  3  Pick.  304.    S. 


LIBEL.  801 

Baylev,  J.,  held  that  the  whole  corpus  delicti  must  be  proved  within 
one  county,  and  that  there  was  no  distinction  in  this  respect  between 
felonies  and  misdemeanors.  Abbott,  J.,  said  that  as  the  whole  was 
a  misdemeanor  compounded  of  distinct  parts,  each  of  which  was  an  aet 
done  in  the  prosecution  of  the  same  criminal  intention,  the  whole 
might  be  tried  in  the  county  of  \j.,  where  one  of  those  acts  had  been 
done. 

The  post-marks  upon  letters  (proved  to  be  such)  are  evidence  that 
the  letters  which  bear  them  were  in  the  offices  to  which  the  post- 
marks belong  at  the  times  denoted  by  the  marks.  R.  v.  Plnmer,  lluss. 
&  Ry.  204.  But  the  mark  of  double  postage  having  been  paid  is  not 
of  itself  proof  that  tlie  letter  contained  an  indosure.     Id. 

Proof  of  a  newspaper  under  the  requisitions  of  the  repealed  statute 
38  Geo.  3,  c.  78,  ante,  p.  704,  was  held  to  be  proof  that  the  paper 
was  })ublislied  in  the  county  where  the  printing  is  described  to  be. 
R.  V.  Hart,  10  P:ast,  94. 

A  letter  containing  a  libel  was  proved  to  be  in  the  handwriting  of 
A.,  to  have  been  addressed  to  a  party  in  Scotland,  to  have  been 
received  at  the  post-office  at  C.  from  the  post-office  at  H.,  and  to 
have  been  then  forwarded  to  London  to  be  forwarded  to  Scotland.  It 
was  produced  at  the  trial  with  the  proper  post-mark,  and  ^vith  the 
seal  broken.  This  Avas  held  to  be  sufficient  evidence  of  the  letter 
having  reached  the  person  to  whom  it  was  addressed,  and  of  its  hav- 
ing been  published  to  him.  AVarren  v.  Warren,  1  C.  M.  &  R.  250; 
4  Tyr.  850. 

Proof  for  the  defendant.  As  the  offence  of  publishing  a  libel  con- 
sists in  the  malicious  publication  of  it,  which,  as  already  stated,  is 
in  general  inferred  from  the  words  of  the  alleged  libel  itself,  it  is  com- 
petent to  the  defendant,  in  all  cases,  to  show  the  absence  of  malice  on 
his  part.  He  cannot,  it  is  true,  give  in  evidence  matter  of  justifica- 
tion— that  is  to  say,  he  cannot  admit  the  publication  to  be  mali- 
cious, and  then  rely  for  his  defence  upon  circumstances  which  show 
that  he  w^as  justified,  however  malicious  the  libel  may  be ;  but  he  is 
not  precluded  from  giving  evidence  of  those  circumstances  which 
tend  to  prove  that  the  original  publication  of  the  libel  was  Avithout 
*malice.  It  may,  perhaps,  be  laid  down  as  a  rule,  that  the  mat-  r^>^-in 
ters  which  might  be  given  in  evidence  under  the  general  issue  ■- 
in  an  action  in  order  to  disprove  malice,  are  also  admissible  for  the 
same  purpose  upon  the  trial  of  an  indictment  or  information.^ 

The  defendant  may,  therefore,  show  that  the  publication  was 
merely  accidental,  and  without  his  knowledge,  as  where  he  delivers 
one  paper  instead  of  another,  or  delivers  a  letter  without  knowing  its 
contents.     R.  v.  Topham,  4  T.  R.  127,  128  ;  R.  v.  Nutt,  Fitzg.  47  ; 

^  Whether  the  truth  can  be  given  in  evidence  divided  the  court  in  People  v.  Cross- 
well,  3  Johns.  Cases,  337,  s.  c.  2  Wheel.  C.  C.  330.  That  it  cannot,  however,  see 
State  V.  Lehr,  Id.  282;  Commonwealth  v.  Buckingham,  Id.  181  ;  State  v.  Morris,  3  Id. 
464 ;  Commonwealth  v.  Blanding,  3  Pick.  304 ;  Commonwealth  v.  Clap,  4  Mass.  163. 
See  also,  State  v.  Burnham.  9  N.  H.  34.     S. 


892  LIBEL. 

R.  V.  Lord  Abingdon,  1  Esp.  225.  See  also  Day  v.  Bream,  2  Moo.  & 
R.  54,  where  l\itte.son,  J.,  lield  that  a  porter,  who  in  the  course  of 
his  business  delivered  parcels  containing  libellous  handbills,  was 
not  liable  to  an  action  for  libel  if  he  were  shown  to  be  ignorant 
of  the  contents  of  the  parcels.  See  the  6  &  7  Vict.  c.  96,  s.  7,  post, 
p.  716,  and  R.  v.  Holbrook,  3  Q.  B.  D.  60  ;  47  L.  J,,  Q.  B.  35,  ante, 
p.  708. 

So  the  defendant,  under  the  plea  of  not  guilty  to  the  indictment, 
may  show  that  the  libel  was  published  under  circumstances  which 
the  law  recognizes  as  constituting  either  an  absolute  justification  or 
excuse,  independently  of  the  question  of  intention,  or  a  qualified 
justification,  dependent  on  the  actual  intention  and  motive  of  the 
defendant.  2  Stark,  on  Sland.  308,  2nd  ed.  Thus  the  defendant 
may  show  that  the  alleged  libel  was  presented  bond  fide  to  the  king 
as  a  petition  for  the  redress  of  grievances ;  Case  of  the  Seven 
Bishops,  12  St.  Tr.  183;  or  to  parliament;  Hawk.  P.  C.  b.  2,  c.  73, 
s.  8  ;  or  that  it  was  contained  in  articles  of  the  peace  exhibited  to  a 
magistrate,  or  in  any  other  proceeding  in  a  regular  course  of  justice. 
Id.  "  It  seems,"  says  Hawkins,  "  to  have  been  held  by  some,  that  no 
want  of  jurisdiction  in  the  court  to  which  such  complaint  is  exhibited 
will  make  it  a  libel,  because  the  mistake  of  the  proper  court  is  not 
imputable  to  the  party,  but  to  his  counsel ;  yet  if  it  shall  manifestly 
appear  from  the  whole  circumstances  of  the  case,  that  a  prosecution 
is  entirely  false,  malicious,  and  groundless,  commenced,  not  with  a 
design  to  go  through  with  it,  but  only  to  expose  the  defendant's  char- 
acter under  the  show  of  legal  proceeding,  it  would  form  a  ground  for 
indictment  at  the  suit  of  the  king,  as  the  malice  of  the  proceeding 
would  be  a  good  foundation  for  an  action  on  the  case  of  the  suit  of  the 
party." '     Id. 

Though  it  is  a  defence  to  show  that  the  alleged  libel  was  published 
by  a  person  in  a  privileged  capacity,  as  by  a  member  of  parliament 
in  his  place,  or  by  some  person  in  the  course  of  a  judicial  proceed- 
ing, yet  if  it  appear  tliat  the  publication  took  place  by  the  party 
when  not  invested  with  the  privileged  capacity,  or  by  a  third  person 
who  has  never  been  invested  with  it,  this  furnishes  no  defence.  Thus 
a  member  of  parliament  Avho,  after  delivering  his  speech  in  parlia- 
ment, publishes  it,  is  criminally  responsible  for  the  libel.  R.  v. 
Creevey,  1  M.  &  S.  273 ;  though  by  Act  of  parliament  the  members 
are  protected  from  all  charges  against  them  for  anything  said  in 
either  house.  1  W.  &  M.  st.  2,  c.  2,  but  see  infra.  So  it  was  held 
by  the  Court  of  Queen's  Bench,  that  it  is  no  defence  in  law  to 
an  action  for  publishing  a  libel,  that  the  defamatory  matter  is 
part  of  a  document  which  was,  by  order  of  the  House  of  Commons, 
laid  before  the  house,  and  thereupon  became  part  of  the  proceedings 
of  the  house,  and  which  was  afterwards,  by  orders  of  the  house, 
printed  and   published   by  the  defendants  :  and   that   the  House  of 

'  Bodwell  V.  Osgood,  3  Pick.  379  ;  Gray  v.  Pentland,  2  S.  &  K.  23 ;  Lewis  v.  Few, 
5  .Johns.  1  ;  Harris  v.  Huntingdon  etal.,  2  Tyl.  129;  1  Id.  164;  Tlioru  v.  Blanchard, 
5Jolins.  508.    S. 


LIBEL.  893 

Commons  heretofore  resolved,  declared,  and  adjudged,  "that  the 
*power  of  publishing  such  of  its  reports,  votes,  and  proceedings  r^r-,  o 
as  it  shall  deem  necessary  or  condu(;ive  to  the  ]>nl)lic  interests,  ^ 
is  an  essential  incident  to  the  constitutional  functions  of  parliament, 
more  especially  to  the  Commons  House  of  Parliament  as  the  repre- 
sentative portion  of  it."  On  the  demurrer  to  a  plea  suggesting  such 
a  defence,  it  was  also  lield,  that  a  court  of  law  is  competent  to  deter- 
mine whether  or  not  the  House  of  Commons  has  such  privileges  as 
will  support  the  plea.  Stockdale  v.  Hansard,  9  A.  &  E.  1,  36 
E.  C.  L. ;  but  see  now  3  &  4  Vict.  c.  9,  and  Stockdale  v.  Hansard,  11 
A.  &  E.  297,  39  E.  C.  L.;  and  it  has  been  recently  held  that  the  ])ub- 
lication  in  a  public  newspaper  of  a  faithful  report  of  a  debate  in  either 
house  of  parliament  is  privileged,  so  that  the  publisher  is  not  respon- 
sible for  defamatory  statements  made  in  the  course  of  the  debate  and 
reproduced  in  such  faithful  report.  Nor  is  he  liable  for  the  publica- 
tion of  fair  comments  upon  the  debates  so  reported.  Wason  v.  Walter, 
L.  R.  4  Q.  B.  73  ;  38  L.  J.,  Q.  B.  34.' 

It  will,  upon  the  same  principle,  be  a  defence  to  show  that  the  sup- 
posed libel  was  written  bond  fide,  with  the  view  of  investigating  a 
fact  in  which  the  party  is  interested,  provided  the  limits  necessary  for 
effectuating  such  inquiry  are  not  exceeded.  Delany  v.  Jones,  4  Esp. 
190;  Finden  v.  Westlake,  Moo.  &  Malk.  461  ;  Brown  v.  Croome,  2 
Stark.  N.  P.  C.  297,  3  E.  C.  L.  So  where  the  libel  was  an  advertise- 
ment for  the  discovery  of  the  plaintiff,  an  absconding  debtor,  pub- 
lished at  the  request  of  the  party  who  had  sued  out  a  capias,  for  the 
purpose  of  enabling  the  sheriif  to  take  him.  Lay  v.  Lawson,  4  A.  <&  E. 
795,  31  E.  C.  L.  So  the  showing  of  a  libel  to  the  person  reflected  on, 
with  tlie  bond  fide  intention  of  giving  him  an  opportunity  for  making 
an  explanation,  or  with  a  friendly  intention  to  enable  him  to  exculpate 
himself,  or  seek  his  legal  remedy,  is  no  offence.  2  Stark,  on  Slander, 
249,  2nd  ed. ;  B.  N.  P.  C.  8 ;  M'Dougall  v.  Claridge,  1  Campb.  267. 
And  the  same  with  regard  to  a  letter  of  friendly  advice.  Id.  Thus 
a  letter  from  a  son-in-law  to  his  mother-in-law  volunteering  advice  re- 
specting her  proposed  marriage,  and  containing  imputations  upon  the 
person  whom  she  was  about  to  marry,  is  a  privileged  communication, 
and  not  actionable,  unless  malice  be  shown.  Todd  v.  Hawkins,  2 
Moo.  &  R.  20.  But  an  unnecessary  publicity  M'ould  render  such  a 
communication  libellous,  as  if  the  letter  were  published  in  a  news- 
paper. R.  V.  Knight,  Bac.  Ab.  Libel  (A.  2).  So  a  representation 
made  bond  fide  by  the  defendant  to  a  public  officer  respecting  the  con- 
duct of  a  plaintiff,  a  person  acting  under  him,  is  not  primd  facie 
actionable.  Blake  v.  Pilfold,  1  Moo.  &  R.  198.  So  a  letter  to  the 
postmaster-general,  complaining  of  misconduct  in  a  postmaster,  is  not 
libellous  if  it  contains  a  bond  fide  complaint.  Woodward  v.  Landor, 
6  C.  &  P.  548,  25  E.  C.  L.     See  also  Hopwood  v.  Thom,  8  C.  B.  293, 

*  Comments  of  a  newspaper  upon  public  officers  are  not  privileged  communicationa 
in  a  libel  suit.  State  v.  Bauer  Pub.  Co.,  8  Crim.  Law.  Mag.  35.  But  see  Common- 
wealth V.  Ward  well,  136  Ma^is.  164;  Brig.e:8  v.  Garrett,  111  Pa.  St.  404;  Common- 
wealth V.  McClure,  1  County  Ct.  Eep.  (Pa.)  207. 


894  LIBEL. 

65  E.  C.  L, ;  Harrison  v.  Bush,  25  L.  J.,  Q.  B.  25 ;  Cook  v.  Wildes, 
1  Jur.  N.  S.  610.  Upon  the  same  principle  the  defendant  may  show 
that  the  supposed  libel  was  written  hondjide  for  the  purpose  of  giving 
the  character  of  a  servant.  Edmonson  v.  Stevenson,  Bull.  N.  P.  8 ; 
Weatherstone  :;.  Hawkins,  1  T.  R.  110;  Pattison  v.  Jones,  8  B.  &  C. 
578,  15  E.  C.  L.;  Child  v.  Affleck,  9  B.  &  C.  403,  17  E.  C.  L. ; 
Somervill  v.  Hawkins,  10  C.  B.  583,  70  E.  C.  L. ;  Taylor  v.  Haw- 
kins, 16  Q.  B.  308,  71  E.  C.  L. ;  and  Harris  v.  Thompson,  13  C.  B.  33, 
16  E.  C.  L.  AVliere  the  occasion  is  privileged,  the  burden  of  proof  is 
on  the  plaintiff  to  show  that  the  defendant  did  not  honestly  believe 
his  statements  to  be  true.  If  he  did  honestly  believe  them  to  be  true, 
the  defendant  can  claim  privilege,  although  he  had  no  reasonable 
*71  J.1  *grounds  for  such  belief.  Clark  v.  Molyneux,  3  Q.  B.  D.  237  ; 
-■  47  L.  J.,  Q.  B.  230.^  So  where  the  wife  of  a  tradesman, 
being  informed  that  a  female  assistant  in  her  husband's  employment 
was  dishonest,  wrote  at  his  request,  and  sent  a  letter  accusing  her  of 
theft,  and  strongly  reproaching  her,  it  was  held  that  the  occasion  was 
privileged,  and  that  therefore  in  the  absence  of  malice  the  defendant 
was  not  liable.     R.  v.  Perry,  15  Cox,  C.  C.  169. 

The  publication  of  the  proceedings  of  a  court  of  justice  correctly 
given,  containing  a  libel  upon  the  character  of  an  individual,  and 
published  by  a  third  person  not  connected  with  the  proceedings,  is  not 
punishable.  Lewis  v.  Walter,  4  B.  &  A.  613,  6  E.  C.  L.;  Ryalls  v. 
Leader,  L.  R.  1  Exch.  296;  35  L.  J.  Exch.  185.  "It  is  now  well 
established,"  said  Cockburn,  C.  J.,  in  delivering  the  judgment  of  the 
court  in  Wason  v.  Walter,  "  that  faithful  and  fair  reports  of  the  pro- 
ceedings of  courts  of  justice,  though  the  character  of  individuals  may 
incidentally  suffer,  are  privileged,  and  that  for  the  publication  of  such 
reports  the  publishers  are  neither  criminally  nor  civilly  responsible." 
And  the  reason  of  this  privilege  is,  that  "  the  general  advantage  to  the 
country  in  having  these  proceedings  made  public  more  than  counter- 
balances the  inconvenience  to  the  private  persons  whose  conduct  may 
be  the  subject  of  the  proceedings."  With  respect  to  ex  parte  proceed- 
ings the  court  said  that  they  had  been  regarded  as  an  exception  from 
this  rule,  "  yet  ex  parte  proceedings  before  magistrates,  and  even  before 
this  court,  as,  for  instance,  on  application  for  criminal  informations, 
are  published  every  day ;  but  such  a  thing  as  an  action  or  indictment 
founded  on  a  report  of  such  an  ex  parte  proceeding  is  unheard  of,  and 
if  any  such  action  or  indictment  should  be  brought  it  would  ])robably 
be  held  that  the  true  criterion  of  the  privilege  is  not  whether  the 
report  was  or  was  not  ex  parte,  but  whether  it  was  a  fair  and  honest 
report  of  what  had  taken  place,  published  simply  with  a  view  to  the 
information  of  the  public,  and  innocent  of  all  intention  to  do  injury 
to  the  reputation  of  the  partv  affected."  See  also  Usill  v.  Hales,  3  C. 
P.  D.  319;  47  L.  J.,  C.  P.  323. 

The  publication  of  a  seditious  libel  will  not  be  privileged  on  the 
ground  that  it  was  copied  from  a  foreign  newspaper.     It  is  a  question 

^  But  generally  evidence  of  probable  cause  is  not  admissible  in  a  criminal  libel  suit. 
State  V.  Bauer  Pub.  Co.,  8  Crim.  Law.  Ma;;.  35. 


LIBEL.  895 

for  the  ]xiry  whether  it  was  so  copied  as  an  item  of  news  or  for  a  sedi- 
tious purpose,  and  they  may  consider  the  surrounding  circumstances 
in  order  to  arriv^e  at  the  intention  of  the  publisher.  E,.  v.  Sullivan, 
11  Cox,  C.  C.  44  (Irish). 

The  conduct  and  management  of  the  clergyman  of  a  parish  of  a 
charitable  society  in  a  parish,  from  the  benefit  of  which  dissenters  are 
by  his  sanction  excluded,  is  not  lawful  subject  of  public  comment  so 
as  to  excuse  a  libellous  publication  respecting  it.  Gathercole  v.  Miall, 
15  M.  &  W.  319  ;  15  L.  J.,  Ex.  179.  So  where  on  showing  cause 
against  a  rule  for  a  criminal  information  for  publishing  a  blasphemous 
and  seditious  libel,  it  was  urged  that  it  was  merely  the  report  of  a 
judicial  proceeding ;  yet  the  court  held,  that  if  the  statement  con- 
tained anything  blasphemous,  seditious,  indecent,  or  defamatory,  the 
defendant  had  no  right  to  publish  it,  though  it  had  actually  taken 
place  in  a  court  of  justice.  R.  v.  Carlile,  3  B.  &  Aid.  161,  5  E.  C.  L. 
Where  a  libel  stated  that  there  was  a  riot  at  C,  and  that  a  person  iired 
a  pistol  at  an  assemblage  of  persons,  and  upon  this  imputed  neglect  of 
duty  to  the  magistrates,  Patteson,  J.,  held,  that  on  the  trial  of  a 
criminal  information  for  this  libel  on  the  magistrates,  the  defendant's 
counsel,  with  a  view  of  showing  that  the  libel  did  not  exceed  the 
*bounds  of  free  discussion,  could  not  go  into  evidence  to  prove  r^-^  p. 
that  there  was  in  fact  a  riot,  and  that  a  pistol  was  fired  at  the  L 
people.     R.  V.  Brigstock,  6  C.  &  P.  184,  25  E.  C.  L. 

Before  the  6  &  7  Vict.  c.  96  (E.  &  I.),  the  defendant  Avas  not  al- 
lowed upon  an  indictment  to  give  evidence  of  the  truth  of  the  libel ; 
but  now  by  s,  6  of  that  statute,  "  on  the  trial  of  any  indictment  or  in- 
formation for  a  defamatory  libel,  the  defendant  having  pleaded  such 
plea  as  hereinafter  mentioned,  the  truth  of  the  matters  charged  may  be 
inquired  into,  but  shall  not  amount  to  a  defence,  unless  it  Avas  for  the 
public  benefit  that  the  said  matters  charged  should  be  published ;  and 
that  to  entitle  the  defendant  to  give  evidence  of  the  truth  of  such  mat- 
ters charged,  as  a  defence  to  such  indictment  or  information,  it  shall  be 
necessary  for  the  defendant,  in  pleading  to  the  said  indictment  or  in- 
formation, to  allege  the  truth  of  the  said  matters  charged,  in  the  man- 
ner now  required  in  pleading  a  justification  to  an  action  for  defamation, 
and  further  to  allege  that  it  was  for  the  public  benefit  that  the  said 
matters  charged  should  be  published,  and  the  particular  fact  or  facts 
by  reason  whereof  it  was  for  the  public  benefit  that  the  said  matters 
charged  should  be  published,  to  which  plea  the  prosecutor  shall  be  at 
liberty  to  reply  generally,  denying  the  whole  thereof;  and  if,  after 
such  ])lea,  the  defendant  shall  be  convicted  on  such  indictment  or  in- 
formation, it  shall  be  competent  to  the  court  in  pronouncing  sentence, 
to  consider  whether  the  guilt  of  the  defendant  is  aggravated  or  miti- 
gated by  the  said  plea,  and  by  the  evidence  given  to  prove  or  to  dis- 
prove the  same :  provided  always,  that  the  truth  of  the  matters  charged 
in  the  alleged  libel  complained  of,  by  such  indictment  or  information, 
shall  in  no  case  be  inquired  iuto  without  such  plea  of  justification  : 
provided  also,  that  in  addition  to  such  plea  it  shall  be  competent  to  the 
defendant  to  plead  a  plea  of  not  guilty  :    provided  also,  that  nothing 


896  LIBEL. 

in  this  act  contained  shall  take  away  or  prejudice  any  defence  under 
the  plea  of  not  guilty,  which  it  is  now  competent  to  the  defendant  to 
make  under  such  plea  to  any  action  or  indictment  or  information  for 
defamatory  words  or  libel." 

Where  a  defendant  in  an  information  for  libel  pleads  the  truth  of 
the  charges  under  this  section,  evidence  is  not  admissible  in  support  of 
the  plea  that  the  same  charges  had  been  previously  published  within 
the  knowledge  of  the  prosecutor,  and  that  he  had  not  taken  legal  pro- 
ceedings against  the  publisher.  R.  v.  Newman,  1  El.  &  Bl.  2(38,  72 
E.  C.  L.;  22  L.  J.,  Q.  B.  156.^  In  the  same  case  it  was  decided,  that 
upon  a  general  replication  to  such  plea  the  defendant  is  bound  to  prove 
the  truth  of  all  the  material  allegations  contained  in  it  (see,  however, 
R.  V.  Labouchere,  14  Cox,  C.  C.  419,  at  p.  432),  and  if  he 
fail  to  do  so,  it  is  no  ground  for  a  new  trial  that,  with  respect  to  some 
of  those  upon  wliich  the  jury  gave  a  verdict  against  him,  their  find- 
ing was  against  the  weight  of  the  evidence ;  but  the  court,  in  pro- 
nouncing sentence,  Avill  consider  the  evidence  on  both  sides,  and  form 
their  own  conclusion,  "  whether  the  guilt  of  the  defendant  is  aggra- 
vated or  mitigated  by  the  plea  and  by  the  evidence  given  to  prove  or 
disprove  the  same."  Affidavits,  showing  the  grounds  upon  which  the 
defendant  proceeded  in  pleading,  are  receivable  in  mitigation  of  pun- 
ishment. 

This  section  does  not  apply  to  seditious  libels.  R.  v.  Duffy,  9  Ir. 
L.  Rep.  329  ;  2  Cox,  C.  C.  45  ;  R.  v.  O'Brien,  15  Cox,  C.  C.  (Irish), 
180  ;  see  a7ite,  p.  706. 

*71  fil  *Where  the  plea  of  justification  stated  that  the  prosecutor 
-I  had  earned  the  reputation  of  a  scandalous  friar,  a  witness 
called  on  behalf  of  the  defendant  in  support  of  the  plea,  was  allowed 
to  be  asked  on  cross-examination  as  to  the  prosecutor's  moral  character. 
R.  V.  Newman,  3  C.  &  K.  252. 

By  s.  7,  "whensoever,  upon  the  trial  of  any  indictment  or  infor- 
mation for  the  publication  of  a  libel,  under  the  plea  of  not  guilty, 
evidence  shall  have  been  given  which  shall  establish  a  presumptive 
case  of  publication  against  the  defendant  by  the  act  of  any  other  per- 
son by  his  authority,  it  shall  be  competent  to  such  defendant  to  prove 
that  such  publication  was  made  without  his  authority,  consent,  or 
knowledge,  and  that  the  said  publication  did  not  arise  from  want  of 
due  care  or  caution  on  his  jjart." 

Statute  32  Geo.  3,  c.  60.  By  Mr.  Fox's  Act  (the  32  Geo.  3,  c.  60), 
reciting  that  doubts  had  arisen  Avhether,  on  the  trial  of  an  indictment 
or  information  for  the  making  or  publishing  of  a  libel,  where  an  issue 
or  issues  are  joined  between  the  king  and  the  defendant  or  defendants 
on  the  plea  of  not  guilty  pleaded,  it  be  competent  to  the  jury  im]ian- 
nelled  to  try  the  same,  to  give  their  verdict  upon  the  whole  matter 
put  in  issue,  it  is  (by  sect.  1)  declared  and  enacted,  that  on  every  such 
trial  the  jury  sworn  to  try  the  issue  may  give  a  general  verdict  of  not 

'  Nor  is  evidence  of  facts  which  occurred  prior  to  the  time  alleged  in  the   libel  ad- 
missible.   State  V.  Bauer  Pub.  Co.,  8  Crim.  Law  Mag.  35. 


LIBEL.  897 

guilty  upon  the  whole  matter  put  in  issue  upon  such  indictment  or 
information,  and  shall  not  be  required  or  directed,  by  the  court  or 
judge  before  whom  such  indictment  or  information  shall  be  tried,  to 
find  the  defendant  or  defendants  guilty  merely  on  the  proof  of  the 
publication,  by  such  defendant  or  defendants,  of  the  paper  charged  to 
be  a  libel,  and  of  the  sense  ascribed  to  the  same  in  such  indict- 
ment or  information.  By  sect.  2  it  is  provided,  that  on  every  such 
trial  the  court  or  judge  before  whom  such  indictment  or  information 
shall  be  tried,  shall,  according  to  their  or  his  discretion,  give  their 
or  his  opinion  or  direction  to  the  jury  on  the  matter  in  issue,  between 
the  king  and  the  defendant  or  defendants,  in  like  manner  as  in  other 
criminal  cases.  By  sect.  3  it  is  provided,  that  nothing  in  the  Act 
contained  shall  extend,  or  be  construed  to  extend,  to  prevent  the  jury 
from  finding  a  special  verdict  in  their  discretion,  as  in  other  criminal 
cases.  And  by  sect.  4,  in  case  the  jury  shall  find  the  defendant  or 
defendants  guilty,  it  shall  and  may  be  lawful  for  the  defendant  or  de- 
fendants to  move  in  arrest  of  judgment,  on  such  ground  and  in  such 
manner  as  by  law  he  or  they  might  have  done  before  the  passing  of 
the  Act.^ 

Publishing  a  libel  to  extort  money.     See  "  Threats,"  post. 

.    *  See  People  v.  Croswell,  2  Johns.  Cases,  337.    S. 

The  fact  of  libel  is  prima  facie  for  the  court.    State  v.  Bauer  Pub.  Co.,  8  Crim  Law 
Mag.  35. 


57 


898  MACHINERY. 


*717] 


♦MACHINERY. 


Attempting  to  blow  up  machinery.     See  24  &  25  Vict.  c.  97,  ss. 

10,  45,  supra,  pp.  484,  485. 

Kiotously  destroying  or  damaging  machinery.  See  24  &  25  Vict, 
c.  97,  ss.  11,  12,  infra,  tit.  "Riot." 

Destroying  or  damaging  machinery.  By  the  24  &  25  Vict.  c.  97, 
the  latter  part  of  s.  14,  "whosoever  shall  unlawfully  and  maliciously 
cut,  break,  or  destroy,  or  damage  with  intent  to  destroy  or  render  use- 
less, any  loom,  frame,  machine,  engine,  rack,  tackle,  tool,  or  implement, 
whether  fixed  or  movable,  prepared  for  or  employed  in  carding,  spin- 
ning, throwing,  weaving,  fulling,  shearing,  or  otherwise  manufac- 
turing, or  preparing  any  such  goods  or  articles  [see  first  part 
of  section,  tit.  "  Manufactures,"  posQ,  or  shall  by  force  enter  into 
any  house,  shop,  building,  or  place,  with  intent  to  commit  any  of  the 
oifences  in  this  section  mentioned,  shall  be  guilty  of  felony,  and  being 
convicted  thereof  shall  be  liable,  at  the  discretion  of  the  court,  to  be 
kept  in  penal  servitude  for  life,  or  for  any  term  not  less  than 
three  [now  five]  years, — or  to  be  imprisoned  for  any  term  not  ex- 
ceeding two  years,  with  or  without  hard  labor,  and  with  or  without 
solitary  confinement,  and,  if  a  male  under  the  age  of  sixteen  years, 
with  or  without  whipping." 

By  s.  15,  "whosoever  shall  unlawfully  and  maliciously  cut,  break, 
or  destroy,  or  damage  with  intent  to  destroy,  or  to  render  useless,  any 
machine  or  engine,  whether  fixed  or  movable,  used  or  intended  to  be 
used  for  sowing,  reaping,  mowing,  threshing,  ploughing,  or  draining, 
or  for  performing  any  other  agricultural  operation,  or  any  machine 
or  engine,  or  any  tool  or  implement,  whether  fixed  or  movable,  pre- 
pared for  or  employed  in  any  manufacture  whatsoever  (except  the 
manufacture  of  silk,  woollen,  linen,  cotton,  hair,  mohair,  or  alpaca 
goods,  or  goods  of  any  one  or  more  of  those  materials  mixed  with  each 
other  or  mixed  with  any  other  material,  or  any  framework,  knitted 
piece,  stocking,  hose,  or  lace),  shall  be  guilty  of  felony,  and  being 
convicted  thereof  shall  be  liable,  at  the  discretion  of  the  court,  to  be 
kept  in  penal  servitude  for  any  term  not  exceeding  seven  years,  and 
not  less  than  three  [now  five]  years, — or  to  be  imprisoned  for  any 
term  not  exceeding  two  years,  with  or  without  hard  labor,  and  with 
or  without  solitary  confinement,  and,  if  a  male  under  the  age  of  six- 
teen years,  with  or  without  whipping." 


*Persons 
convicted. 


MACHINERY.  899 

Destroying  or  damaging  machinery  used  in  mines.  See  24  &  25 
Vict.  c.  97,  s.  29,  infra,  tit.  *'  Manufaoturos,"  post. 

Malice  against  owner  unnecessary.  See  24  &  25  Vict.  c.  97,  s. 
58,  supra,  p.  289. 

in  possession  of  injured  property  liable  to  be   r^y^^ 
See  24  &  25  Vict.  c.  97,  s.  59,  supra,  p.  289.  L     ^ 

Form  of  indictment.  See  24  &  25  Vict.  c.  97,  s.  60,  supra,  p. 
289. 

Proof  of  damaging  machinery.  Where  the  prisoner  was  indicted, 
under  the  28  Geo.  3,  c.  55,  s.  4,  a  similar  statute  now  repealed,  for 
entering  a  shop,  and  maliciously  damaging  a  certain  frame  used  for 
the  making  of  stockings,  and  it  appeared  that  he  had  unscrewed  and 
carried  away  a  part  of  the  frame,  called  the  half-jack,  an  essential 
part  of  the  frame,  without  which  it  is  useless,  this  was  held  a  damaging 
of  the  frame  within  the  statute.  R.  v.  Tacey,  Russ.  &  Ry.  452.  And 
\vhere  the  prisoner  screwed  up  the  working  parts  of  the  engine  of  a 
thrashing  machine,  and  had  reversed  the  plug  of  the  pump  which 
supplied  the  boiler,  and  had  also  stopped  up  one  of  the  pipes,  so  that 
the  machine  could  not  be  again  set  in  motion  without  great  difficulty, 
and  if  it  had  been  left  in  the  state  in  which  the  prisoner  left  it 
the  boiler  would  have  burst ;  it  was  held  to  be  a  damaging  within  the 
statute,  and  that  the  damage  in  such  cases  need  not  be  of  a  per- 
manent nature.  R.  v.  Fisher,  35  L.  J.,  M.  C.  57  ;  1  L.  R.,  C.  C. 
R.  7. 

Where  the  machine  is  imperfect.  It  has  been  held  in  several 
cases,  that  it  is  an  offence  within  the  statute,  though  the  machine  at 
the  time  when  it  is  broken  has  been  taken  to  pieces,  and  is  in  different 
places,  only  requiring  the  carpenter  to  put  those  pieces  together 
again.  R.  v.  Mackerell,  4  C.  &  P.  448,  19  E.  C.  L.  So  where  the 
machine  was  worked  by  water,  and  the  prosecutor  expecting  a  riot, 
took  it  to  pieces,  and  removcnl  the  pieces  to  the  distance  of  a  quarter 
of  a  mile,  leaving  only  the  water-wheel  and  its  axis  standing,  and  the 
wheel  was  destroyed  by  the  prisoners  ;  this  was  held  to  be  an  offence 
within  the  statute.  R.  v.  Fidler,  4  C.  &  P.  449,  19  E.  C.  L.  Where 
certain  sideboards  were  wanting  to  a  machine  at  the  time  it  was  de- 
stroyed, but  did  not  render  it  so  defective  as  to  prevent  it  altogether 
from  working,  though  it  would  not  work  so  effectually,  it  was  still 
held  to  be  a  thrashing-machine  within  the  statute.  R.  v.  Bartlett, 
Salisb.  Sp.  Com.  2  Deac.  Dig.  C.  L.  1517.  So  also  where  the  owner 
removed  a  wooden  stage,  belonging  to  the  machine,  on  which  the  man 
who  fed  the  machine  was  accustomed  to  stand,  and  had  also  taken 
away  the  legs ;  and  it  appeared  that,  though  the  machine  could  not  be 
conveniently  worked  without  some  stage  for  the  man  to  stand  on,  yet 
that  a  chair  or  table,  or  a  number  of  sheaves  of  corn,  would  do  nearly 


900  MACHINERY. 

as  well,  and  that  it  could  also  be  worked  without  the  legs  ;  it  was 
held  to  be  within  the  statute.  R.  v.  Chubb,  Salisb.  Sp.  Com.,  2  Deac. 
Dig.  C.  L.  1518.  But  where  the  owner  had  not  only  taken  the  ma- 
chine to  pieces,  but  broken  the  wheel,  from  fear  of  its  being  set  on  fire  ; 
and  it  appeared  that,  without  the  wheel,  the  engine  could  not  be 
worked ;  this  was  held  to  be  a  case  not  within  the  statute.  R.  v. 
West,  Salisb.  Sp.  Com.,  2  Dea«.  Dig.  C.  L.  1518. 


MAINTENANCE,   ETC,  901 


•MAINTENANCE,  ETC.  [*719 

PAGE 

Maintenance •       «       *  719 

Nature  of  the  offence       ....,,,,  719 

Justifiable — in  respect  of  interest       .,,,,.  720 

Master  and  servant •        «        •  720 

Affinity ,        ,        .  720 

Poverty ,        .  720 

Counsel  and  solicitors ,  720 

Champerty 720 

Embracery    •.., 721 

Maintenance — nature  of  the  offence.  Maintenance  signifies  an 
unlawful  taking  in  hand  or  upholding  of  quarrels  or  sides,  to  the  dis- 
turbance or  hindrance  of  common  right.^  Hawk.  P.  C.  b.  1,  c.  83,  s. 
1,  It  may  be  either  with  regard  to  matters  in  suit,  or  to  matters  not 
in  legal  controversy.  Id.  s.  2.  It  is  an  offence  punishable  at  com- 
mon law  with  fine  and  imprisonment,  and  is  forbidden  by  various 
statutes.  1  Ed.  3,  st.  2,  c.  14;  29  Ed.  3,  c.  4  (repealed);  1  Rich.  2, 
c.  4 ;  32  Hen.  8,  c.  9,  s.  3.  These  Acts,  however,  are  only  declaratory 
of  the  common  law,  with  additional  penalties.  Pechell  v.  Watson,  8 
M.  &.  W.  691. 

According  to  the  old  authorities,  whoever  assists  another  with 
money  to  carry  on  his  cause,  or  retains  one  to  be  of  counsel  for  him, 
or  otherwise  bears  him  out  in  the  whole  or  any  part  of  his  suit,  or  by 
his  friendship  or  interest  saves  him  that  expense  which  he  might  be 
otherwise  put  to,  or  gives  evidence  without  being  called  upon  to  do 
so,  or  speaks  in  another's  cause,  or  retains  an  attorney  for  him,  or 
being  of  great  power  and  interest,  says  publicly  that  he  will  spend 
money  to  labor  the  jury,  or  stand  by  the  party  while  his  cause  is 
tried,  this  is  maintenance.  Hawk.  P.  C.  b.  1,  c.  83,  ss.  5,  6,  7.  It 
may  be  doubted,  however,  whether,  at  the  present  day,  some  of  these 
acts  would  be  held  to  amount  to  an  indictable  offence,  unless  they 
were  plainly  accompanied  with  a  corrupt  motive.  A  bare  promise  to 
maintain  anotlier  is  not  in  itself  maintenance,  unless  it  be  so  in 
respect  of  the  public  manner  in  which,  or  the  power  of  the  person  by 
whom  it  is  made.  Hawk.  P.  C.  b.  1 ,  c.  83,  s.  8.  So  the  mere  giving 
of  friendly  advice  as  to  what  action  it  will  be  proper  to  bring  to 
recover  a  certain  debt,  will  not  amount  to  maintenance.  Id.  s.  11, 
"  To  bind  oneself  after  the  commencement  of  a  suit  to  pay  the  expenses 
of  another  in  that  suit,  more  especially  if  that  other  be  a  person  him* 
self  of  no  means,  and  the  suit  be  one  which  he  cannot  bring,  is  still, 

1  See  Small  t.  Mott,  22  Wend.  403.    S. 


902  MAINTENANCE,   ETC. 

as  it  always  was,  maintenance.  .  .  .  This  general  statement  requires 
two  qualifications  :  first,  that  the  acts  of  the  maiutainer  must  be 
[legally]  immoral,  and  that  the  maintainor  must  have  been  actuated 
by  a  [legally]  bad  motive ;  next,  that  if  he  has,  or  believes  himself 
to  have,  a  common  interest  with  the  plaintitl'  in  the  result  of  the 
*7om  *s»it,  his  acts,  which  would  otherwise  be  maintenance,  cease  to 
-■  be  so."  See  per  Lord  Coleridge,  C.  J.,  in  Bradlaugh  v.  New- 
degate,  11  Q.  B.  D.  1,  at  p.  9 ;  52  L.  J.,  Q.  B.  D.  454. 

Maintenance — justifiable — in  respect  of  interest.  Those  who  have 
a  certain  interest,  or  even  bare  contingent  interest,  in  the  matter  in 
variance,  may  maintain  another  in  an  action  concerning  such  matter ; 
as  in  the  case  of  landlord  and  tenant,  trustee  and  cestui  que  trust. 
Hawk.  P,  C.  b.  1,  c.  83,  ss.  19,  20,  21.  So  where  A.  at  the  request 
of  B,  defended  an  action  brought  for  the  recovery  of  a  sum  of  money 
in  which  B.  claimed  an  interest,  upon  B.  undertaking  to  indemnify 
him  from  the  consequences  of  such  action,  this  was  held  not  to  be 
maintenance.  Williamson  v.  Henley,  6  Bingh.  299,  19  E.  C.  L.  So 
wherever  persons  claim  a  common  interest  in  the  same  thing,  as  in  a 
way,  common,  etc.,  by  the  same  title,  they  may  maintain  one  another 
in  a  suit  relating  to  the  same.  Hawk.  P.  C.  b.  1,  c.  83,  s.  24.  See 
also  Bradlaugh  v.  Newdegate,  supra. 

Maintenance — justifiable — master  and  servant.  A  master  may  go 
with  his  servant  to  retain  counsel,  or  to  the  trial  and  stand  by  him,  but 
ought  not  to  speak  for  him  ;  or  if  arrested,  may  assist  him  with  money. 
Hawk.  P.  C.  b.  1,  c.  83,  ss.  31,  32.  So  a  servant  may  go  to  counsel  on 
behalf  of  his  master,  or  show  his  evidences,  but  cannot  lawfully  lay 
out  his  own  money  to  assist  his  master.  Id.  s.  34. 

Maintenance — justifiable — aflQ.nity.  AVhoever  is  in  any  way  of  kin 

or  affinity  to  either  of  the  parties,  may  stand  by  him  at  the  bar,  and 
counsel  or  assist  him ;  but  unless  he  be  either  father  or  son,  or  heir- 
apparent,  or  the  husband  of  such  an  heiress,  he  cannot  justify  laying 
out  money  in  his  cause.     Hawk.  P.  C.  b.  1,  c.  83,  s.  26. 

Maintenance — justifiable — poverty.  Any  one  may  lawfully  give 
money  to  a  poor  man  to  enable  him  to  carry  on  his  suit.^  Hawk.  P. 
C.  b.  1,  c.  83,  s.  36. 

Maintenance — justifiable — counsel  and  solicitors.  Another  excep- 
tion to  the  general  rule  with  regard  to  maintenance  is  the  case  of  coun- 
sel and  solicitors.  But  no  counsel  or  solicitor  can  justify  the  using  of 
any  deceitful  practice  in  the  maintenance  of  a  client's  cause,  and  they 
are  liable  to  be  severely  punished  for  anv  misdemeanors  of  this  kind. 
Hawk.  P.  C.  b.  1,  c.  83,  s.  31.  And  by  stat.  West.  1,  c.  29,  if  any 
Serjeant,  pleader,  or  other,  do  any  manner  of  deceit  or  collusion  in  the 
king's  court,  or  consent  to  it,  in  deceit  of  the  court,  or  to  beguile  the 

1  Ferine  v.  Dunn,  3  Johns.  Ch.  508  ;  State  v.  Chitty,  1  Bailey,  401.    S. 


MAINTENANCE,   ETC.  903 

court  or  the  party,  he  shall  be  imprisoned  for  a  year  and  a  day.  Pro- 
curing a  solicitor  to  appear  for  a  man,  and  to  confess  judgment  without 
a  warrant,  has  been  held  within  this  statute.  Hawk.  P.  C.  b.  1,  c. 
83,  s.  36.  So  bringing  a  praecipe  against  a  poor  man,  knowing  he  has 
nothing  in  the  land,  on  purpose  to  get  the  possession  from  the  true 
tenant.     Id.  s.  35. 

Champerty.  Champerty  is  a  species  of  maintenance,  accompanied 
by  a  bargain  to  divide  the  matter  sued  for  between  the  parties,  where- 
upon the  champertor  is  to  carry  on  the  suit  at  his  own  expense.  4 
Bl.  Com.  135  ;  1  Russ.  Cri.  356,  5th  ed.  Champerty  may  be  in  per- 
sonal as  well  as  in  real  actions.  Hawk.  P.  C.  b.  1,  c.  84,  s.  5  ;  and 
to  maintain  a  defendant  may  be  champerty.     Id.  s.  8.^ 

*By  31  Eliz.  c.  5,  the  offence  of  champerty  may  be  laid  in   r^^n-, 
any  county  at  the  pleasure  of  the  informer.     This  statute  is  L 
repealed,  except  as  to  criminal  proceedings,  by  42  &  43  Vict,  c,  59. 

Various  cases  have  occurred  in  modern  times  in  which  the  doctrine 
of  champerty  has  come  in  question.  Where  a  bill  was  filed  to  set  aside 
an  agreement  made  by  a  seaman,  for  the  sale  of  his  chance  of  prize- 
money,  Sir  William  Grant,  M.  R.,  expressed  an  opinion  that  the 
agreement  was  void  from  the  beginning,  as  amounting  to  champerty, 
viz.,  the  unlawful  maintenance  of  a  suit,  in  consideration  of  a  bargain 
for  a  part  of  a  thing,  or  some  profit  out  of  it.  Stevens  v.  Bagwell, 
15  Ves.  139.  So  it  has  been  held,  that  an  agreement  to  communicate 
such  information  as  should  enable  a  party  to  recover  a  sum  of  money 
by  action,  and  to  exert  influence  for  procuring  evidence  to  substantiate 
the  claim,  upon  condition  of  receiving  a  portion  of  the  sum  recovered, 
was  illegal.  Stanley  v.  Jones,  7  Bingh.  369  ;  5  Moore  &  P.  193;  see 
Potts  V,  Sparrow,  6  C.  &  P.  749,  25  E.  C.  L.,  and  Bradlaugh  v. 
Newdegate,  supra,  p.  720. 

Embracery.  Embracery,  likewise,  is  another  species  of  mainte- 
nance. Any  attempt  to  corrupt,  or  influence,  or  instruct  a  jury,  or  to 
incline  them  to  be  more  favorable  to  one  side  than  the  other,  by  money, 
promises,  letters,  threats,  or  persuasions,  except  only  by  the  strength 
of  the  evidence,  and  the  arguments  of  the  counsel  in  open  court  at  the 
trial  of  the  cause,  is  an  act  of  embracery  ;  whether  the  jurors  gave 
any  verdict  or  not,  and  whether  the  verdict  given  be  true  or  false.' 
Hawk.  P.  C.  b.  1,  c.  85,  s.  1.  The  giving  of  money  to  a  juror  after 
the  verdict,  without  any  preceding  contract  is  an  offence  savoring  of 

'  The  law  forbidding  champerty  and  maintenance  does  not  prevail  in  New  Jersey. 
Schomp  V.  Schenck,  40  N.  J.  L.  195,  distinguishing  13  C.  B.  (N.  S.)  677,  106  E.  C.  L. 
In  Alabama  a  contract  by  which  an  attorney-at-law  is  to  receive  a  portion  of  the  pro- 
ceeds of  a  case  if  successful  is  champertous  and  void.  Jenkins  v.  Bradford,  59  Ala. 
400.  An  agreement  to  attend  to  another's  suit,  and  compensate  oneself  out  of  amount 
recovered  is  not  champertous.  Cross  v.  Bloomer,  6  Baxter,  (Tenn.)  74.  The  court 
may  dismiss  an  action  at  any  stage  on  discovering  that  it  is  being  prosecuted  by  plain- 
tifTs  attorney  in  a  champertous  contract.     Greenman  v.  Cohea,  61  Ind.  201. 

*  Gibbs  r.  Dewey,  5  Cow.  503.  Embracery  is  any  attempt  or  effort  to  influence  a 
jury,  whether  it  is  successful  or  not.  But  there  is  no  such  crime  recognized  by  law  as 
an  attempt  to  commit  embracery.    State  v.  Sales,  2  Nev,  268.    S. 


904  MAINTENANCE,  ETC. 

embracery  ;  but  it  is  otherwise  of  the  payment  of  a  juror's  travelling 
expenses.  Id.  s.  3.  Embracery  is  punishable  by  fine  and  imprison- 
ment.    Id.  8.  7. 

Analogous  to  the  offence  of  embracery  is  that  of  persuading,  or  en- 
deavoring to  persuade,  a  witness  from  attending  to  give  evidence,  an 
offence  punishable  with  fine  and  imprisonment.  It  is  not  material  that 
the  attempt  has  been  unsuccessful.  Hawk.  P.  C.  b.  1,  c.  21  s,  15  • 
R.  V.  Lawley,  2  Str.  904 ;   1  Euss.  Cri.  361,  5th  ed.  ' 


MALICIOUS   INJUKIES.  905 


•MALICIOUS  INJURIES. 


[*722 


Most  malicious  .njuries  to  persons  and  property  are  specially  pro- 
vided for,  and  the  law  relating  to  them  will  be  found  under  the 
various  species  of  this  kind  of  offence.* 

By  the  24  &  25  Vict.  c.  97,  s.  51,  "whosoever  shall  unlawfully  and 
maliciously  commit  any  damage,  injury,  or  spoil  to  or  upon  any  real 
or  personal  property  whatsoever,  either  of  a  public  or  private  nature, 
for  which  no  punishment  is  hereinbefore  provided,  the  damage,  injury, 
or  spoil  being  to  an  amount  exceeding  five  pounds,  shall  be  guilty  of 
a  misdemeanor,  and  being  convicted  thereof  shall  be  liable,  at  the  dis- 
cretion of  the  court,  to  be  imprisoned  for  any  term  not  exceeding  two 
years,  with  or  without  hard  labor  ;  and  in  case  any  such  offence  shall 
be  committed  between  the  hours  of  nine  of  the  clock  in  the  evening 
and  six  of  the  clock  in  the  next  morning  shall  be  liable,  at  the  dis- 
cretion of  the  court,  to  be  kept  in  penal  servitude  for  any  term  not 
exceeding  five  years  and  not  less  than  three  [now  five],  or  to  be 
imprisoned  for  any  term  not  exceeding  two  years,  with  or  without 
hard  labor." 

There  is  a  similar  provision  contained  in  s.  52  (only  the  words  there 

^  Mosely  v.  State,  25  Ga.  190.  For  other  cases  of  malicious  mischief,  see  State  v. 
Newbv,  64  N.  C.  23  ;  Northcot  v.  State,  43  Ala.  330  ;  Hill  v.  State,  Id.  335 ;  Wallace 
V.  State,  30  Tex.  758 ;  Hobson  v.  State,  44  Ala.  380 ;  Wright  v.  State,  30  Ga.  325.  A 
conviction  cannot  be  had  when  the  act  complained  of  was  done  in  the  exercise  of  an 
avowed  legal  right,  no  malicious  intent  being  proved.     State  v.  FljTin,  28  la.  26.     S. 

Where  the  jury  found  a  verdict  as  follows:  ''We  find  the  accused  guilty  of  the 
wilful  and  unlawful  killing  of  the  hog,  but  not  out  of  a  spirit  of  mischief,  revenge, 
or  wanton  cruelty,"  held,  a  verdict  of  acquittal.  Duncan  v.  State,  49  Miss.  331.  In 
cases  of  malicious  mischief  owner's  title  is  immaterial.  State  v.  Gurnee,  14  Kan.  Ill, 
Where  ownership  is  alleged  in  the  indictment  it  must  be  proved  as  laid.  Smith  v. 
State,  43  Texas,  433.  It  is  not  necessary  to  specify  the  day  on  which  the  offence  was 
committed.  State  v.  Hoover,  31  Ark.  676.  The  indictment  must  aver  that  the  act  was 
done  maliciously.  Allen  v.  State,  4  Baxter,  (Tenn.)  21 ;  Thompson  v.  State,  51  Miss. 
353.  It  need  not  allege  that  it  was  done  "without  authority  of  law."  Murrah  v. 
State,  51  Miss.  675. 

A  suit  for  malicious  prosecution  is  of  the  nature  of  a  civil  suit,  and  is  not  the  sub- 
ject of  an  indictment.  The  following  cases  may  be  noted.  The  burden  of  proof  is 
upon  the  plaintiff  to  show  that  defendant  did  not  have  probable  cause.  Palmer  r. 
Richardson,  70  111.  544;  Davie  r.  Wisher,  72  111.  262;  Calef  t;.  Thomas,  81  111.  478. 
What  constitutes  probable  cause  is  a  pure  question  of  law ;  it  is  error  to  leave  it  to  the 
jury.  Emerson  v.  Skaggs,  52  Cal.  246.  The  defendant  may  show  in  defence  what  in- 
formation he  received  upon  which  he  acted  in  opening  the  prosecution.  Anderson  v. 
Friend,  71  111.  474.  He  may  also  testify  that  he  made  the  complaint  without  malice, 
and  upon  advice  of  counsel.  Turner  v.  O'Brien,  5  Neb.  542.  Although  a  witness 
cannot  rehearse  the  testimony  given  by  others  at  the  first  trial,  he  may  testify  that  no 
evidence  in  support  of  the  criminal  charge  was  given.  John  v.  Bridgman,  27  Ohio 
St.  22.  Where-the  court  records  only  show  that  no  bill  has  been  returned  by  the 
grand  jury,  parol  evidence  may  be  introduced  to  show  the  reason.  Knott  i'.  Sargeant, 
125  Mass.  95.    On  what  defence  admissible.    See  Vansickle  v.  Brown,  68  Mo.  627. 


906  MALICIOUS   INJURIES. 

are  wilfully  or  maliciously),  with  respect  to  convictions  before  a  jus- 
tice, and  a  proviso  is  added  that  the  section  shall  not  extend  to  cases 
where  "the  party  acted  under  a  fair  and  reasonable  supposition  he 
had  a  right  to  do  the  act  complained  of."  It  has  been  held  that  in 
the  case  of  a  private  individual  this  means  something  more  than  a 
mere  bond  fide  belief  in  the  right.  White  v.  Feast,  L.  R.  7,  Q.  B. 
353 ;  41  L.  J.,  M.  C.  81  ;  otherwise  in  the  case  of  a  person  act- 
ing in  a  public  capacitv,  as  surveyor  of  highways.  Denny  v. 
Thwaites,  L.  R.  2  Ex.  D.'^21  ;  46  L.  J.,  M.  C.  141.  An  incorporeal 
right,  such  as  "a  right  to  herbage,"  is  not  "real  or  personal  property" 
within  sect.  52.  Laws  v.  Eltringhara,  8  Q.  B.  D.  283  ;  51  L.  J.,  M. 
C.  13. 

Under  this  section  the  prisoner,  who  had  been  fighting  with  persons 
in  the  street  and  had  thrown  a  stone  at  them,  which  struck  a  window 
and  did  damage  to  an  amount  exceeding  51.,  was  indicted  for  "  unlaw- 
fully and  maliciously"  causing  this  damage.  The  jury  convicted  him, 
but  found  that  he  threw  the  stone  at  the  people  he  had  been  fighting 
with,  intending  to  strike  one  or  more  of  them,  but  not  intending  to 
break  the  window.  It  was  held  that  what  is  intended  by  the  statute 
is  a  wilful  doing  of  an  intentional  act  which  the  finding  of  the  jury 
negatived,  and  that  the  conviction  must,  therefore,  be  quashed.  Had 
the  jury  found  that  the  prisoner  was  reckless  of  the  consequences  of 
his  act,  and  might  reasonably  have  expected  that  it  would  result  in 
breaking  the  window,  the  conviction  might  have  been  supported.  R. 
V.  Pembliton,  L.  R.  2  C.  C.  119  ;  43  L.  J.,  M.  C.  91  ;  see  also  R.  v. 
Martin,  8  Q.  B.  D.  54  ;  51  L.  J.,  M.  C.  36  ;  R.  v.  Faulkner,  13  Cox, 
C.  C.  R.  Ir.  550 ;  and  cases  cited  ante,  p.  24. 


MANSLAUGHTER.  907 


♦MANSLAUGHTER.  [*723 

PAGE 

Punishment   ..........  .  723 

Form  of  indictment         ... 723 

Mansliiugliter  abroad ,        .        .  723 

Manslaughter  where  the  death  or  cause  of  death  happens  abroad  723 

Distinction  between  manslaughter  and  murder    ....  723 

Proof  in  cases  of  provocation 724 

mutual  combat 724 

resistance  to  officers  of  justice,  etc.       .        .         .  724 
killing  in  the  performance  of  an  unlawful  or 

negligent  act 724 

killing  in  the  course  of  lawful  or  unlawful  sports  726 

killing  in  the  course  of  lawful  employment         .  729 

negligent  use  of  dangerous  weapons         .        .  730 

contributory  negligence 731 

killing  bv  persons  practising  surgery  or  medicine  732 

neglect  of  duty 736 

correction  of  child  by  parents  or  others      .        .  737 

killing  in  defence  of  person  or  property  .  737 

Punishment.  By  the  24  &  25  Vict.  c.  100,  s.  5,  "  whosoever  shall 
be  convicted  of  manslaughter  shall  be  liable,  at  the  discretion  of  the 
court,,to  be  kept  in  penal  servitude  for  life,  or  for  any  term  not  less 
than  three  [now  five]  years, — or  to  be  imprisoned  for  any  term  not 
exceeding  two  years,  with  or  without  hard  labor,  and  to  pay  such  fine 
as  the  court  shall  award,  in  addition  to  or  without  any  such  other  dis- 
cretionary punishment  as  aforesaid." 

Form  of  indictment.  See  24  &  25  Vict.  c.  100,  s.  6,  infra,  p. 
747. 

Manslaughter  abroad.  See  24  &  25  Vict.  c.  100,  s.  9,  ante,  p. 
258. 

Manslaughter  where  the  death  or  cause  of  death  happens 
abroad.     See  24  &  25  Vict.  c.  100,  s.  10 ;  ante,  p.  257. 

Distinction  between  manslaughter  and  murder.  Manslaughter 
is  principally  distinguishable  from  murder  in  this,  that  though  the  act 
which  occasions  the  death  is  unlawful,  or  likely  to  be  attended  with 
bodily  mischief,  yet  the  malice,  either  express  or  implied,  which  is  the 
very  essence  of  murder,  is  presumed  to  be  wanting  in  manslaughter, 
the  act  being  rather  imputed  to  the  infirmity  of  human  nature.  1 
East,  P.  C.  218;  Foster,  290.^     It  has  also  been  said  to  differ  from 

'  State  V.  Smith,  10  Rich.  Law,  341 ;  Stokes  ?'.  State,  18  Ga.  17 ;  Atkins  v.  State,  16 
Ark.  568  ;  Rapp  v.  Commonwealth,  14  B.  Men.  614.  It  is  no  defence  to  an  indictment 
for  manslaughter,  that  the  homicide  therein  alleged  appears  by  the  evidence  to  have 
been  committed  with  malice  aforethought,  and  was  therefore  murder;  but  the  defend- 
ant in  such  case  may,  notwithstanding,  be  properly  convicted  of  the  offence  of  man- 
slaughter.    Commonwealth  v.  McPike,  3  Cush.  181.     S. 


908  MANSLAUGHTER. 

murder  In  this  respect,  that  there  cannot  be  any  accessories  before  the 
fact  to  manslaughter,  since  the  act  is  presumed  to  be  altogether  sudden 
and  without  premeditation.  1  Hale,  P.  C.  437.  But  in  the  case  of 
R.  V.  Gaylor,  Dears.  &  B.  C  C.  288,  upon  the  above  passage  being 
*794.1  referred  to  in  the  course  of  the  argument,  Erie,  J.,  said  *that 
-■  he  thought  that  Lord  Hale  was  there  speaking  of  manslaugh- 
ter per  infortunium  or  se  defendendo  only,  and  that  he  did  not  under- 
stand him  to  mean  that  in  ordinary  cases  of  manslaughter  there  could 
be  no  accessory.  See  1  Russ.  Cri.  810,  5th  ed.  A  stakeholder  to  a 
fight,  but  who  was  not  present  at  the  fight.  Is  not  accessory  before  the 
fact  to  the  manslaughter  of  one  of  the  combatants  who  died  from  In- 
juries received  during  the  fight.  R.  v.  Taylor,  L.  R.  2  C.  C.  147 ; 
44  L.  J.,  M.  C.  ante,  tit.  "  Accessories." 

It  Is  clear  that  there  may  be  accessories  after  the  fact  to  manslaugh- 
ter. 

Where  A.  was  Indicted  for  the  wilful  murder  of  B.,  and  C.  was  in- 
dicted for  receiving,  harboring,  and  assisting  A.,  well  knowing  that  he 
had  committed  the  felony  and  murder  aforesaid ;  TIndal,  C.  J.,  held 
that  if  the  oifence  of  A.  was  reduced  to  manslaughter,  C.  might  not- 
withstanding, be  found  guilty  as  an  accessory  after  the  fact.  R.  v. 
Greenacre,  8  C.  &  P.  35,  34  E.  C.  L.  See  also  R.  v.  Richards,  2  Q.  B. 
D.  311;  46  L.  J.,  M.  C.  200. 

Provocation.  Whenever  death  ensues  from  sudden  transport  of 
passion  or  heat  of  blood,  if  upon  reasonable  provocation  and  without 
malice,  or  upon  sudden  combat,  it  will  be  manslaughter ;  if  without 
such  provocation,  or  if  the  blood  has  had  reasonable  time  to  cool,  or  If 
there  be  evidence  of  express  malice,  it  will  be  murder.^  2  East.  P.  C. 
232  ;  Foster,  313.     See  the  cases  collected,  post,  title,  "Murder." 

Mutual  combat.  Death  In  the  course  of  a  mutual  combat,  though 
in  some  cases  it  amounts  to  murder,  Is  generally  found  to  constitute 
manslaughter  only,  there  being  most  frequently  an  absence  of  that 
malice  requisite  to  a  conviction  for  murder,  and  a  sufficient  degree  of 

^  Young  V.  State,  11  Humph.  200.  As  to  cases  of  sudden  combat,  and  what  provo- 
cation will  be  sufficient  to  reduce  the  killing  to  manslaughter,  see  People  r.  Sanchez, 
24  Cal.  17 ;  Hittner  v.  State,  19  Ind.  48 ;  State  v.  Shipper,  10  Minn.  253 ;  Gann  v. 
State,  30  Ga.  67  ;  State  i'.  Decklotts,  19  la.  447  ;  Holland  v.  State,  12  Fla.  117 ;  Under- 
wood V.  State,  25  Tex.  (Suppl.)  389 ;  State  v.  Lawrv,  4  Nev.  161  ;  Flanagan  v.  State, 
46  Ala.  703 ;  State  v.  Anderson,  4  Nev.  265 ;  Maria  v.  State,  28  Tex.  689  ;  Common- 
wealth V.  Drum,  58  Pa.  St.  9 ;  State  v.  Massage,  65  N.  C.  480 ;  State  v.  Gut,  13  Minn. 
341. 

The  killing  of  an  unarmed  man  with  a  deadly  weapon  is  not  justified  by  the  exist- 
ence of  some  previous  quarrel  or  feud,  if  sufficient  time  has  elapsed  for  the  blood  to 
cool.     Gladden  v.  State,  12  Fla.  5G2. 

If  one  man  finds  another  in  the  act  of  adultery  with  his  wife,  and  kills  him  on  the 
spot,  tlie  crime  will  be  manslaughter.  But  if  the  adulterer  is  not  slain  until  suthcient 
time  has  elapsed  for  the  passion  to  cool,  the  slayer  is  guilty  of  murder.  State  v, 
Samuel,  3  Jones's  Law,  74 ;  State  v.  Neville,  6  Id.  423 ;  State  ?>.  Avery,  64  N.  C.  608  ; 
Commonwealth  v.  Whitler,  2  Brewst.  388.  S.  Paulin  v.  State,  22'  Tex.  App.  436. 
That  he  had  permitted  prostitutes  to  board  in  his  house  with  lier  is  admissible  in  de- 
termining the  strength  of  the  provocation.    State  r.  Holme,  54  Mo.  153. 


MANSLAUGHTER.  909 

provocation  to  show  such  absence.     See  the  cases  collected,  post,  tit. 
"  Murder."  ^ 

Resistance  to  oflacers  of  justice,  etc.  The  cases  of  homicide 
which  arise  in  tlie  instances  of  officers  of  justice,  or  others  having 
authority  to  arrest,  where  resistance  is  made  to  them  in  the  execution 
of  their  duty,  inchide  every  species  of  homicide.  If  the  officer  is 
killed  in  the  lawful  execution  of  his  duty,  by  the  party  resisting  him, 
it  is  murder.  If  he  be  killed  when  acting  under  a  void  or  illegal 
authority,  or  out  of  his  jurisdiction,  it  is  manslaughter,  or  excusable 
homicide,  according  to  the  circumstances  of  the  case.  If  the  party 
about  to  be  arrested  resist,  and  be  killed,  or  attempt  to  make  his 
escape,  and  the  officer  cannot  take  him  without  killing  him,  it  will  be 
manslaughter,  or  excusable  or  justifiable  homicide,  according  to  cir- 
cumstances.^ These  distinctions  will  be  noticed,  and  the  different 
authorities  and  cases  collected  under  the  head  of  "  Murder."  In  what 
instances  peace  officers  are  authorized  to  arrest  individuals,  and  where 
they  have  power  to  do  so  without  warrant,  and  in  what  cases  the  pro- 
cess under  which  they  act  is  regular  or  irregular,  and  what  is  the  con- 
sequence of  such  irregularity,  is  fully  stated  in  other  parts  of  this 
work.      Vide  post,  title,  "  Murder,"  and  supra,  title,  "  Apprehension." 

Killing  in  the  performance  of  an  unlawful  or  negligent  act.  If 
a  person  commits  an  act  which  he  knows  may  produce  serious  injury, 
and  he  is  indifferent  and  reckless  as  to  the  consequences,  he  commits 
an  unlawful  act.  R.  v.  Bradshaw,  14  Cox,  C.  C.  83.  See  this  case, 
*post,  p.  727.  If  in  doing  an  unlawful  act  death  ensue  in  conse-  r^^ne 
quence  of  the  negligence  of  the  party,  but  without  any  intent  ■- 
to  do  bodily  harm,  it  is  manslaughter  at  the  least.^  Foster,  261.  As 
to  the  cases  where  the  question  has  arisen  whether  the  offence  was  one 
of  murder  or  manslaughter,  see  post,  title  "  Murder,"  p.  746,  et  seq. 

Thus  if  a  person  in  sport  throw  stones  down  a  coal-pit,  whereby  a 
man  is  killed,  this  is  manslaughter,  though  the  party  killed  was  only 
a  trespasser.  R.  v.  Fenton,  1  Lewin,  C  C.  179.  So  where  a  lad,  as  a 
frolic,  without  any  intention  to  do  any  harm  to  any  one,  took  the 

»  People  V.  Tuki,  3  Wheel.  C,  C.  242.    S. 
•Roberts  r.  State,  13  Mo.  382.    S. 

'  Holly  V.  State,  10  Humph.  141.  Eeckless  discharge  of  a  pistol  in  a  street  man- 
slaughter. Sparks  v.  Commonwealth,  3  Bush,  111.  [Killing  by  wilful  striking  is  not 
murder  but  manslaughter.  A  conviction  of  killing  by  wilfully  striking  under  an  in- 
dictment for  murder  is  equivalent  to  an  acquittal.  Connor  v.  Commonwealth,  13  Id. 
714.]  Firing  a  gun  into  a  melon-patch  in  which  there  were  boys  stealing  melons, 
heedlessly  and  recklessly,  and  killing  one  of  the  boys,  is  manslaughter  at  least.  State 
V.  Vance,  17  la.  138.  If  a  man  in  order  to  have  unlawful  sexual  connection  with  a 
woman,  uses  artificial  means  with  her  consent  to  make  such  connection  practicable, 
and  by  carelessness  or  negligence  in  the  operation  inflicts  upon  her  a  wound  which 
causes  her  death,  he  is  guilty  of  manslaughter,  as  is  another  person  who  assists  him  in 
such  operation,  knowing  the  purpose  thereof.    State  i\  Centre,  35  Vt.  378.     S. 

Under  an  indictment  for  manslaughter  by  attempting  to  procure  abortion,  evidence 
that  the  deceased  made  a  prior  attempt  on  herself  is  immaterial,  unless  said  attempt 
contributed  to  her  death.    State  v.  Glass,  5  Oreg.  73. 


910  MANSLAUGHTER. 

trapstick  out  of  the  front  part  of  a  cart,  in  consequence  of  which  it 
was  upset,  and  the  carman,  who  was  in  it  putting  in  a  sack  of  pota- 
toes, was  pitched  backward  on  the  stones  and  killed,  Gurney,  B.,  and 
WilHaras,  J.,  held  that  the  lad  was  guilty  of  manslaughter.  R.  v. 
Sullivan,  7  C.  &  P.  641,  32  E.  C.  L.  So  if  an  improper  quantity  of 
spirituous  liquors  be  giv^en  to  a  child,  heedlessly,  and  for  brutal  sport, 
and  death  ensues,  it  will  be  manslaughter.  R.  v.  Martin,  3  C.  &  P. 
211,  14  E.G.  L. 

Where  a  mother,  being  angry  with  one  of  her  children,  took  up  a 
small  piece  of  iron,  used  as  a  poker,  and  on  his  running  to  the  door 
of  the  room  which  was  open,  threw  it  afiter  him,  and  hit  another  child 
who  happened  to  be  entering  the  room  at  the  moment,  in  consequence 
of  which  the  latter  died  ;  Park,  J.,  held  this  to  be  manslaughter, 
although  it  appeared  that  the  mother  had  no  intention  of  hitting  her 
child  with  whom  she  was  angry,  but  only  intended  to  frighten  him. 
The  learned  judge  said,  "if  a  blow  is  aimed  at  an  individual  unlaw- 
fully— and  this  was  undoubtedly  unlawful,  as  an  improper  mode  of 
correction — and  strikes  another  and  kills  him,  it  is'  manslaughter; 
and  there  is  no  doubt  if  the  child  at  whom  the  blow  was  aimed  had 
been  struck  and  died,  it  would  hav^e  been  manslaughter,  and  so  it  is 
under  the  present  circumstances."  R.  v.  Gonnor,  7  G.  &  P.  438,  32  E. 
C.  L.  The  prisoner  was  indicted  for  manslaughter.  The  deceased  had 
entered  the  prisoner's  house  in  his  absence,  and  on  his  return  was  de- 
sired to  withdraw,  but  refused  to  go.  Upon  this  words  arose,  and  the 
prisoner  becoming  excited,  proceeded  to  use  force,  and,  by  a  kick  which 
he  gave  to  the  deceased,  caused  an  injury  which  produced  his  death. 
Alderson,  B.,  said,  "  a  kick  is  not  a  justifiable  mode  of  turning  a  man 
out  of  your  house,  though  he  be  a  trespasser.  If  the  deceased  would 
not  have  died  but  for  the  injury  he  received,  the  prisoner  having  un- 
lawfully caused  that  injury,  he  is  guilty  of  manslaughter."  R.  v. 
Wild,  2  Lew.  G.  G.  214.  A  man  was  in  possession,  under  the  sheriif. 
One  of  the  prisoners,  of  whose  goods  he  was  in  possession,  assisted  by 
the  other  prisoner,  plied  the  man  with  liquor,  themselves  drinking 
freely  also.  When  he  was  very  drunk  they  put  him  into  a  cabriolet, 
and  caused  him  to  be  driven  about  the  streets  ;  about  two  hours  afler 
he  had  been  put  into  the  cabriolet,  he  was  found  dead.  Lord  Denman, 
G.  J.,  told  the  jury,  that  if  the  prisoner,  when  the  deceased  Mas  drunk, 
drove  him  about  in  his  cabriolet,  in  order  to  keep  him  out  of  possession, 
and  by  so  doing  accelerated  his  death,  it  would  be  manslaughter.  R.  v. 
Packard,  Garr.  &  M.  246,  41  E.  G.  L.  If  A.  and  B.  agree  together 
to  assault  G.  with  their  fists,  and  G.  receives  a  chance  blow  of  the 
fists  from  either  of  them  causing  death,  both  A.  and  B.  are  guilty  of 
manslaughter.  But  should  A.  of  his  own  impulse,  kill  G.  with  a 
weapon  suddenly  caught  up,  B.  would  not  be  responsible  for  the 
death,  he  being  only  liable  for  acts  done  in  pursuance  of  the  common 
design  of  himself  and  A.,  per  Lush,  J.  R.  r.  Gaton,  12  Gox,  G.  G.  624. 
*79n  *The  prisoner  having  the  right  to  the  possession  of  a  gun 
-I  which  was  in  the  hands  of  the  deceased,  and  which  he  knew  to 
be  loaded,  attempted  to  take  it  away  by  force.  In  the  struggle  which  en- 


MANSLAUGHTER.  911 

sued  the  gun  went  off  accidentally  and  caused  the  death  of  the  deceased. 
Lord  Campbell  directed  the  jury  that,  though  the  prisoner  had  a  right 
to  the  possession  of  the  gun,  to  take  it  away  by  force  was  unlawful  ; 
and  that,  as  the  evidence  showed  that  the  discharge  of  the  gun,  though 
accidental,  was  the  result  of  this  unlawful  act,  it  was  their  duty  to 
find  the  prisoner  guilty  of  manslaughter.  R.  v.  Archer,  1  F.  &  F. 
351. 

But  the  death  must  be  the  direct  and  not  the  indirect  consequence 
of  the  unlawful  act.  The  prisoner  was  a  maker  of  fireworks,  and  he 
made  and  kept  them  in  a  manner  contrary  to  the  provisions  of 
the  9  &  10  Will.  3,  c.  7,  s.  1  (repealed),  at  his  own  house.  During 
his  absence,' by  the  negligence  of  one  of  his  servants,  the  fireworks 
became  ignited,  by  which  a  neighboring  house  was  set  fire  to,  and  a 
person  therein  burned  to  death.  It  was  held  that  the  prisoner  was  not 
indictable  for  manslaughter,  as  the  death  was  caused  by  the  negligence 
of  the  servant.  R.  v.  Bennett,  1  Bell,  C.  C.  1  ;  28  L.  J.,  M.  C.  27. 
Where  a  station-master  despatched  trains  at  too  short  an  interval  afler 
each  other,  and  a  signal  man  caused  a  collision  by  a  mistake  with  the 
signals,  Erie,  C.  J.,  advised  the  grand  jury  to  throw  out  the  bill 
against  the  station-master.  R.  v.  Ledger,  2  F.  &  F.  858.  A.  in  un- 
lawfully assaulting  B.,  who  at  the  time  had  in  her  arms  an  infant,  so 
frightened  the  infant  that  it  died,  A.  is  guilty  of  manslaughter  if  the 
jury  think  that  the  assault  on  B.  was  the  direct  cause  of  death.  Per 
Denman,  J.  R.  v.  Towers,  1 2  Cox,  C.  C.  530.  See  as  to  the  negli- 
gent omission  of  a  duty,  R.  v.  Hughes,  1  Dears.  &  B.  C.  C.  248  ;  26 
L.  J.,  M.  C.  133. 

As  to  manslaughter  committed  by  the  captain  and  mate  of  a 
vessel  on  one  of  the  crew,  see  R.  v.  Leggett,  8  C.  &  P.  191,  34 
E.  C.  L. 

Killing  in  the  course  of  lawful  or  unlawful  sports.  Where  death 
ensues  in  the  case  of  sports  or  recreations,  such  recreations  being 
innocent  and  allowable,  it  falls  within  the  rules  of  excusable 
homicide,  because  bodily  harm  is  not  the  motive  on  either  side. 
Foster,  250  ;  1  East,  P.  C.  268.  Therefore  persons  ])laying  at  cudgels, 
Comb.  408,  or  foils  or  wrestling,  R.  v.  Lane,  1  East,  P.  C.  268,  are 
excusable  if  death  ensue.  Lord  Hale  appears  to  be  of  a  different 
opinion.  He  says,  "  he  that  voluntarily  and  knowingly  intends  hurt 
to  the  person  of  a  man,  though  he  intends  not  death,  yet  if  death 
ensue,  it  excuses  not  from  the  guilt  of  murder  or  manslaughter  at 
least ;  as,  if  A.  intends  to  beat  B.  but  not  to  kill  him,  yet  if  death 
ensue,  this  is  not  per  infortunium,  but  murder  or  manslaughter, 
as  the  circumstances  of  the  case  happen ;  and,  therefore,^'  he 
continues,  "  I  have  known  it  ruled,  that  if  two  men  are  playing 
at  cudgels  together,  or  wrestling,  by  consent,  if  one  by  a  blow  or 
fall  kills  the  other,  it  is  manslaughter,  and  not  per  infortunium,  as 
Mr.  Dalton  (cap.  90)  seems  to  doubt  it ;  and  accordingly  it  was  re- 
solved, P.  2,  Car.  2,  by  all  the  judges,  upon  a  special  verdict,  from 
Newgate,  where  two  friends  were  playing  at  foils  at  a  fencing  school, 


912  MANSLAUGHTER. 

and  one  casually  killed  the  other;  resolved  to  be  manslaughter," 
1  Hale,  P.  C.  472.  The  questions  in  these  cases  appear  to  be  twofold, 
1st,  whether  the  sport  was  lawful ;  and  second,  whether  the  parties 
engaged  in  it  with  a  friendly  mind,  or  with  intent  to  do  each  other 
^-^--j  *some  bodily  harm.  The  cases  mentioned  by  Lord  Hale  seem 
-I  to  proceed  upon  the  latter  supposition,  and  on  this  groimd  they 
are  distinguished  by  Mr.  Justice  Foster  from  the  case  of  persons  who 
in  perfect  friendship  engage  by  mutual  consent  in  recreations  for  the 
trial  of  skill  or  manhood,  or  for  improvement  in  the  use  of  arms. 
Foster,  259,  260 ;  1  East,  P.  C.  268.  But  if  there  be  dangerous 
weapons  used  in  such  sports,  and  there  be  any  negligence  in  the  use  of 
them,  and  one  of  the  parties  be  killed,  such  negligence  may  render  the 
act  manslaughter.  Sir  John  Chichester,  fencing  with  his  servant, 
made  a  pass  at  him,  which  the  servant  parried  off  with  a  bedstaff.  In 
the  heat  of  the  exercise,  the  chape  of  the  scabbard  flew  off,  and  the 
man  was  killed  by  the  point  of  the  sword.  It  was  held  that  this  was 
manslaughter,  because  though  the  act  which  occasioned  the  death  in- 
tended no  harm,  nor  could  it  have  done  harm,  if  the  chape  had  not 
been  struck  off  by  the  party  killed,  and  though  the  parties  were  in 
sport,  yet  the  act  itself,  the  thrusting  at  the  servant,  was  unlawful. 
Aleyn,  12;  1  Hale,  P.  C.  472.  Mr.  Justice  Foster  puts  this  decision 
on  another  ground,  observing  that  the  party  did  not  use  the  degree  of 
circumspection  which  common  prudence  would  have  suggested  ;  and 
therefore  the  fact  so  circumstanced  might  well  amount  to  manslaughter. 
Foster,  260;  1  East,  P.  C.  269. 

Death  in  the  course  of  a  friendly  contest  may  also  amount  to  man- 
slaughter if  any  undue  advantage  has  been  taken.  Tims,  if  two  per- 
sons are  engaged  to  play  at  cudgels,  and  one  of  them  makes  a  blow  at 
the  other  likely  to  hurt,  before  he  was  upon  his  guard,  and  without 
warning,  and  death  ensues,  the  want  of  due  and  friendly  caution  would 
make  the  act  amount  to  manslaughter.     1  East,  P.  C.  269. 

If  death  is  caused  by  an  injury  received  in  a  friendly  sparring- 
match,  which  is  not  a  thing  likely  to  cause  death,  it  is  not  manslaughter, 
unless  the  parties  fight  on  until  the  sport  becomes  dangerous.  R.  v. 
Young,  10  Cox,  C.  C.  371.  Bramwell,  B.,  after  consulting  Byles,  J. 
But  if  the  parties  met  intending  to  fight  for  money  till  one  gave  in 
from  exhaustion  or  injury  received,  the  contest  would  be  a  prize-fight, 
although  only  gloves  were  used.  R.  v.  Orton,  14  Cox,  C.  C.  226. 
"  Charging  "  in  a  game  of  football,  knowing  that  charging  in  the  man- 
ner adopted  is  likely  to  produce  serious  injury  to  another,  and  being 
reckless  and  indifferent  as  to  the  consequences,  would  be  an  unlawful 
act,  and  if  death  was  thereby  caused,  it  would  be  manslaughter.  R.  v. 
Bradshaw,  14  Cox,  C.  C.  83. 

Though  the  weapons  be  of  a  dangerous  nature,  yet  if  they  be  not 
directed  by  the  person  using  them  against  each  other,  and  so  no  danger 
be  reasonably  apprehended,  if  death  casually  ensue,  it  is  only  misad- 
venture. 1  East,  P.  C.  269.  Therefore,  if  a  })erson  be  shooting  at 
game  or  butts,  or  other  lawful  object,  and  a  bystander  be  casually 
killed,  it  is  only  misadventure.     1  Hale,  P.  C.  38,  39,  472 ;    1  East, 


MANSLAUGHTER.  913 

P.  C.  269.  But  if  the  sport  or  recreation  be  unlawful,  and  death  en- 
sues in  the  course  of  it,  it  will  be  murder  or  manslaughter,  according 
to  the  circumstances  of  the  case.  Thus,  where  a  man  playing  at  the 
diversion  of  cock-throwing  at  Shrovetide,  missed  his  aim,  and  a  child 
looking  on,  received  a  blow  from  the  staff,  of  which  he  died,  Mr. 
Justice  Foster  (who  observes  that  this  is  a  barbarous,  unmanly  custom, 
productive  of  great  disorders,  and  dangerous  to  bystanders)  ruled  it  to 
be  manslaughter.     Foster,  261. 

Prize-fights,  jjublic  boxing-matches,  and  the  like,  exhibited  for 
the  sake  of  lucre,  are  not  lawful  sports,  for  they  serve  no  valuable 
*purpose,  but,  on  the  contrary,  encourage  a  spirit  of  idleness  r^y^a 
and  debauchery.  Foster,  260.  In  such  case  the  intention  of  ■- 
the  parties  is  not  innocent  in  itself,  each  being  careless  of  what  hurt 
may  be  given,  provided  the  promised  reward  be  obtained  ;  and  besides, 
such  meetings  have  in  their  nature  a  strong  tendency  to  a  breach  of 
the  peace.  Therefore,  in  R.  v.  Ward,  the  prisoner  having  been  chal- 
lenged to  fight  by  his  adversary,  for  a  public  trial  of  skill  in  boxing 
and  also  urged  to  engage  by  taunts  ;  although  the  occasion  was  sudden, 
yet  having  killed  his  opponent,  he  was  held  guilty  of  manslaughter. 
1  East,  P.  C  270.  So  persons  present  at  a  prize-fight  encouraging  it 
by  their  presence  will,  in  the  case  of  death,  be  guilty  of  manslaughter. 
Upon  an  indictment  for  murder,  charging  the  prisoner  with  being 
present  aiding  and  abetting,  it  appeared  that  there  had  been  a  fight 
between  the  deceased  and  another  person,  at  which  a  great  number  of 
persons  were  assembled,  and  that  in  the  course  of  the  fight  the  ring 
was  broken  in  several  times  by  the  persons  assembled,  who  had  sticks, 
which  they  used  with  great  violence.  The  deceased  died  in  conse- 
quence of  the  blows  he  received  on  this  occasion.  There  was  contra- 
dictory evidence  as  to  the  prisoner  having  acted  as  second.  In  sum- 
ming up,  the  judge  (Mr.  Justice  Littledale)  said,  "  My  attention  has 
been  called  to  the  evidence  that  the  prisoner  did  nothing  ;  but  I  am  of 
opinion  that  persons  who  are  at  a  fight,  in  consequence  of  which  death 
ensues,  are  all  guilty  of  manslaughter  if  they  encouraged  it  by  their 
presence  ;  I  mean  if  they  remained  present  during  the  fight.  If  they 
were  not  merely  casually  passing  by,  but  stayed  at  the  place,  they  en- 
couraged it  by  their  presence,  although  they  did  not  say  or  do  any- 
thing. But  if  the  death  ensued  by  violence  unconnected  with  the 
fight  itself, — that  is,  by  blows  not  given  by  the  other  combatant,  but 
by  persons  breaking  in  the  ring,  and  striking  with  their  sticks,  those 
who  were  merely  present  are  not,  by  being  present,  guilty  of  man- 
slaughter. The  case  is  at  most  one  of  manslaughter  only."  R.  v. 
Murphy,  6  C.  &  P.  103,  25  E.  C.  L.  It  has  been  ruled,  however, 
that  persons  present  at  a  fatal  prize-fight  are  not  such  accomplices  as 
that  their  evidence  requires  confirmation.  R.  v.  Hargrave,  4  C.  <fe  P. 
170,  19  E.  C.  L.  The  summing  up  of  Littledale,  J.,  in  R.  v.  Mur- 
phy, as  above  reported,  was  considered  by  the  majority  of  the  Court 
of  Crown  Cases  Reserved  to  be  misleading,  because  it  led  to  the  infer- 
ence as  a  matter  of  law  that  mere  presence  at  a  fight  renders  persons 
so  present  guilty  of  an  assault  in  aiding  and  abetting  in  such  fight. 
58 


914  MANSLAUGHTER. 

This  proposition  was  directly  overruled  by  Denman,  J.,  Huddlcston, 
B.,  Manisty,  Hawkins,  Lopes,  Stephen,  Cave,  and  North,  JJ.  On 
the  other  hand,  Lord  Coleridge,  C.  J.,  Pollock,  B.,  and  Mathew,  J., 
were  of  opinion  that  the  legal  inference  to  be  drawn  from  mere  pres- 
ence as  a  voluntary  spectator,  at  a  prize-fight  is^  in  the  absence  of 
other  evidence  to  rebut  such  inference,  that  the  person  so  present  is 
encouraging,  aiding,  and  abetting.  R.  v.  Coney,  8  Q.  B.  D.  534  ;  51 
L.  J.,  M.  C.  QG.  In  that  case  the  prisoners  were  amongst  a  crowd  of 
people,  surrounding  two  men,  who  fought  in  a  ring,  formed  by  ropes, 
supported  by  posts.  It  did  not  appear  that  the  prisoners  took  any 
active  part  in  the  management  of  the  fight,  or  that  they  said  or  did 
anything.  The  ground  on  which  the  majority  of  the  court  proceeded 
was  thus  put  by  Cave,  J.,  in  giving  judgment:  "  Where  presence  may 
be  entirely  accidental,  it  is  not  even  evidence  of  aiding  or  abetting. 
Where  presence  is  primd  facie  not  accidental,  it  is  evidence,  but  no 
more  than  evidence,  for  the  jury." 


* 


-f)Q-|  *Killing  in  the  course  of  lawful  employment.  Where  death 
-I  casually  ensues  in  the  course  of  a  lawful  employment,  and  there 
is  a  want  of  due  caution  on  the  part  of  the  person  from  whom  it  pro- 
ceeds, it  will  not  be  misadventure,  but  manslaughter.  A.  having  deer 
frequenting  his  corn-field  out  of  the  precinct  of  any  forest  or  chase, 
set  himself  in  the  night-time  to  watch  in  a  hedge,  and  B.  his  servant 
to  watch  in  another  corner  of  the  field  with  a  gun,  charging  him  to 
shoot  when  he  heard  the  deer  rustle  in  the  corn.  The  master  himself 
improvidently  rushed  into  the  corn,  when  the  servant,  supposing  it  to 
be  the  deer,  shot  and  killed  his  master.  This  was  held  to  be  only 
chance-medley,  for  the  servant  was  misguided  by  the  master's  own 
directions.  But  it  seemed  to  Lord  Hale,  who  tried  the  prisoner,  that 
if  the  master  had  not  given  such  directions,  it  would  have  been 
manslaughter  to  have  shot  a  man,  though  mistaking  him  for  a  deer, 
because  he  did  not  use  due  diligence  to  discover  his  mark.  1  Hale, 
P.  C.  476. 

An  ironfounder  being  employed  by  an  oilman  and  dealer  in  marine 
stores  to  make  some  cannon,  to  be  used  on  a  day  of  rejoicing,  and 
afterwards  to  be  put  into  a  sailing-boat,  after  one  of  them  had  burst, 
and  had  been  returned  to  him  in  consequence,  sent  it  back  in  so 
imperfect  a  state,  that,  on  being  fired,  it  burst  again,  and  killed  the 
deceased ;  on  his  trial  before  Bayley,  B.,  Patteson,  J.,  and  Gurney, 
B.,  he  was  found  guilty  of  manslaughter.  R.  v.  Carr,  8  C.  &  P.  163, 
34  E.  C.  L. 

Death  ensuing  in  the  performance  of  an  act  otherwise  lawful  may 
amount  to  manslaughter,  by  the  negligence  of  the  party  performing 
the  act ;  as  in  the  instance  of  workmen  throwing  down  stones 
from  the  top  of  a  house,  where  they  were  working,  where  there  is  a 
small  probability  of  persons  passing  by.    1  East,  P.  C.  262 ;  Foster,  262. 

The  most  common  cases  of  this  class  are  those  where  the  death  has 
been  occasioned  by  negligent  driving.  A.  was  driving  his  cart  with 
four  horses,  in  the  highway  at  Whitechapel.     He,  being  in  his  cart, 


MANSLAUGHTER.  915 

and  the  four  horses  at  a  trot,  they  threw  down  a  woman  who  was 
going  the  same  way,  with  a  burden  upon   her  head,  and  killed  lier. 
Holt,  C  J.,  two  other  judges,  and  the  recorder,  held   this  to  be  mis- 
adventure only  ;  but  per  Holt,  C.  J.,  if  it  had  been  in  a  street  where 
people  usually  passed,  it   had   been   manslaughter.     Upon  this  ease, 
Mr.  East  has  made  the  following  observation  :  "  It  must  be  tal<en  for 
granted  from  this  note  of  the  ease  that  the  accident  ha})pened  in  a 
highway  u-here  people  did  not  iisually  pass,  for  otherwise  the  cireimi- 
stance  of  the  driver  being  in  the  cart,  and  going  so  much  faster  than  is 
usual  for  carriages  of  that  construction,  savored  much  of  negligence 
and  impropriety ;  fur  it  was  extremely  diffi(!ult,  if  not  impossil)le,  to 
stop   the   course    of    the    horses    suddenly,    in    order    to  avoid  any 
person  that  could  not  get  out  of  the  way  in  time.     And  indeed  such 
conduct  in  the  driver  of  such  heavy  carriages,  might,  under  such  cir- 
cumstances, be  thought  to  betoken  a  want  of  due  care,  if  any,  though 
few  persons,  might  probably  pass  by  the  same  road.     The  greatest 
possible  care  is  not  to  be  expected,  nor  is  it  to  be  required,  but  who- 
ever seeks  to  excuse  himself  from   having  unfortunately  occasioned 
by  any  act  of  his  own  tlie  death  of  another,  ought  at  least  to  show 
that  he  took  that  care  to  avoid  it  which  persons  in  similar  situations 
are  accustonied  to  do."    1  East,  P.  C.  263.  The  deceased  was  walking 
along  the  road  in  a  state  of  intoxication.     The  prisoner  ^jvas  driving  a 
*cart  drawn  by  two  horses,  without  reins.  The  horses  were  can-   r^^on 
tering,  and  the  prisoner  was  sitting  in  front  of  the  cart.     On   L 
seeing  the  deceased,  he  called  to  him  twice,  to  get  out  of  the  way,  but 
from  the  state  he  was  in,  and  the  rapid  pace  of  the  horses,  he  could  not 
do  so,  and  was  killed.     Garrow,  B.,  said,  that  if  a  man  drive  a  cart  at 
an  unusual  rapid  pace,  whereby  a  person  is  killed,  though  he  calls  re- 
peatedly to  such  person  to  get  out  of  the  way,  if  from  the  rapidity  of 
the  driving  or  any  other  cause  the  pei'son  cannot  get  out  of  the  way  in 
time  enough,  but  is  killed,  the  driver  is  guilty  of  manslaughter.     He 
added,  that  it  is  the  duty  of  every  man  who  drives  any  carriage,  to 
drive  it  with  such  care  and  caution  as  to  prevent,  as  far  as  in  his  own 
power,  any  accident  or  injury  that  may  occur.     R.  v.  Walker,  1  C.  & 
P.  320,  12  E.  C.  L.     What  will  constitute  negligence  in   the  case  of 
driving  carriages  must  depend  greatly  upon  the  circumstances  of  each 
particular  case.     It  was  ruled  by  Mr.  Justice  Bayley,  that  a  carter,  by 
being  in  the  cart,  instead  of  at  the  horse's  head,  or  by  its  side,  was 
guilty  of   negligence ;  and  if  death  ensued,  of  manslaughter.     R.  v. 
Knight,  1  Lewin,  C  C.  168.     And  the  same  point  was  ruled  by  Hul- 
lock,  B.     Anon.,  Id.     The  prisoner  was  charged  with  manslaughtei'. 
It  appeared,  that  there  were  two  omnibuses,  which  were  running  in 
opposition  to  each  other,  galloping  along  a  road,  and  that  the  prisoner 
was  driving  that  on  which  the  deceased  sat,  and  was  whipping  his 
horses  just  before  the  omnibus  upset.     In   summing  up  to  the  jury, 
Patteson,  J.,  said,  "  The  main  questions  are,  were  the  two  omnibuses 
racing  ?  and  was  the  prisoner  driving  as  fast  as  he  could,  in  order  to 
get  past  the  other  omnibus  ?  and  had  he  urged  his  horses  to  so  rapid 
a  pace  that  he  could  not  control  them  ?     If   you  are  of  that  opin- 


916  MANSLAUGHTER. 

ion,  you  ought  to  convict  him."  R.  v.  Timmins,  7  C  &  P.  499, 
32  E.  C.  L.  As  to  the  doctrine  of  contributory  negligence,  see 
post,  p.  731. 

To  make  the  captain  of  a  steam- vessel  guilty  of  manslaughter,  in 
causing  a  person  to  be  drowned  by  running  down  a  boat,  the  prosecu- 
tor must  siiow  some  act  done  by  the  captain,  and  a  mere  omission  on 
his  part  in  not  doing  the  whole  of  his  duty  is  not  sufficient.  But  if 
there  were  sufficient  light,  and  the  captain  of  the  steamer  is  either  at 
the  helm,  or  in  a  situation  to  be  giving  the  command,  and  does  that 
which  causes  the  injury,  he  is  guilty  of  manslaughter.  Per-  Park,  J., 
and  Alderson,  B.,  R.  v.  Green,  7  C.  &  P.  156,  32  E.  C.  L.  But  see 
infra,  p.  736. 

The  prisoner  was  indicted  for  manslaughter,  and  it  appeared  that 
it  was  his  duty  to  attend  a  steam-engine,  and  that  on  the  occasion  in 
question  he  had  stopped  the  engine  and  gone  away.  During  his 
absence,  a  person  came  to  the  spot,  and  put  it  in  motion,  and  being 
unslvilled,  was  unable  to  stop  it  again  ;  and,  in  consequence  of  the 
engine  being  thus  put  in  motion,  the  deceased  was  killed.  Alderson, 
B.,  stopped  the  case,  observing,  that  the  death  was  the  consequence, 
not  of  the  act  of  the  prisoner,  but  of  the  person  who  set  the  engine  in 
motion  after  the  prisoner  went  away,  and  that  it  was  necessary,  in 
order  to  a  conviction  for  manslaughter,  that  the  negligent  act  which 
caused  the  death  should  be  that  of  the  party  charged.  R.  v.  Hilton, 
2  Lew.  C.  C.  214.  See  also  R.  v.  Lowe,  post,  p.  736,  and  R.  v.  Ben- 
nett, ante,  p.  726. 

Negligent  use  of  dangerous  weapons.^  It  is  sometimes  very  difficult 
to  trace  the  boundaries  between  manslaughter  and  misadventure,  as 
^_.,-.-]    *in  the  following  case : — A  man  found  a  pistol   in  the  street 

'^  -I  which  he  had  reason  to  believe  was  not  loaded,  he  having  tried 
it  with  the  rammer.  He  carried  it  home  and  showed  it  to  his  wife, 
and  she  standing  before  him,  he  pulled  the  cock,  and  touched  the  trig- 
ger. The  pistol  went  off  and  killed  the  woman,  and  this  was  ruled 
to  be  manslaughter.  Kel.  41.  Admitting,  says  Mr.  Justice  Foster, 
that  this  judgment  was  strictly  legal,  it  was,  to  say  no  better  of  it, 
summum  jus.  But,  he  continues,  I  think  it  was  not  so ;  for  the  law  in 
these  cases  does  not  require  the  utmost  caution  that  can  be  used ;  it  is 
sufficient  that  a  reasonable  precaution,  what  is  usual  and  ordinary  in 
like  cases,  should  be  used.  Foster,  264.  Mr.  Justice  Foster  men- 
tions a  similar  case  which  occurred  before  himself:  "I  once  upon  a 
circuit  tried  a  man  for  the  death  of  his  wife  by  a  like  accident.  Upon 
a  Sunday  morning  the  man  and  his  wife  went  a  mile  or  two  from  home 
with  some  neighbors,  to  take  a  dinner  at  the  house  of  their  common 
friend.  He  carried  his  gun  with  him,  hoping  to  meet  with  some  diver- 
sion by  the  way.  But  before  he  went  to  dinner  he  discharged  it,  and 
set  it  up  in  a  private  place  in  his  friend's  house.  After  dinner  he  went 

^  Under  an  act  to  prevent  the  careless  use  of  weapons,  the  absence  of  malice  is  a 
requisite  of  the  statute  to  insure  conviction.     People  v.  Chappell,  27  Mich.  486. 


MANSLAUGHTER.  917 

to  churcli,  and  in  the  evening  returned  home  with  his  wife  and  neigh- 
bors, bringing  his  gun  witli  him,  which  was  carried  into  the  roum 
where  his  wife  was.  He  taking  it  up,  touched  the  trigger,  when  it 
went  off,  and  killed  his  wife,  whom  he  tenderly  loved.  It  came  out 
in  evidence,  that  while  the  man  was  at  church  a  person  belonging  to 
the  family  privately  took  the  gun,  charged  it,  and  went  after  some 
game,  but  before  the  service  at  church  was  ended,  restored  it,  loaded, 
to  the  place  whence  it  was  taken,  and  where  the  defendant,  ignorant  of 
what  had  passed,  found  it,  to  all  appearance,  as  he  had  left  it.  1  did 
not,"  says  Mr.  Justice  Foster,  "  incpiire  whether  the  poor  man  had  ex- 
amined the  gun  before  he  carried  it  home,  but  being  of  oi)inion,  upon 
the  whole  evidence,  that  he  had  reasonable  grounds  to  believe  that  it 
was  not  loaded,  I  directed  the  jury  that  if  they  were  of  the  same  opinion 
they  should  acquit  him,  and  they  did  acquit  him  accordingly."  Foster, 
265.  "  If  a  man  takes  a  gun,  not  knowing  whether  it  is  loaded  or 
unloaded,  and  using  no  means  to  ascertain,  and  fires  it  in  the  direction 
of  any  other  person,  and  death  ensues,  he  is  guilty  of  manslaughter." 
R.  V.  Campbell,  11  Cox,  C.  C.  323.  This  latter  direction  seems  pre- 
ferable to  that  of  Mr.  Justice  Foster,  for  to  point  a  gun  in  the  direc- 
tion of  another,  even  with  most  reasonable  grounds  of  a  negative  char- 
acter for  believing  it  to  be  vniloaded,  is  only  an  act  of  folly,  and  it  is 
not  too  much  to  require  that  a  man  should  take  positive  means  to 
ascertain  that  it  is  not  loaded  before  he  points  it  in  the  direction 
of  another  person.  And  see  the  questions  asked  of  the  jury  by 
Cockburn,  C.  J.,  in  R.  v.  Weston,  14  Cox,  C  C.  346,  post,  p.  774. 
Where  three  men  went  out  with  a  rifle  and  set  up  a  mark  in  a  tree  in 
the  proximity  of  houses,  and  a  bullet  from  the  rifle  killed  a  boy  at  a 
distance  of  393  yards,  it  was  held  that  so  shooting  without  taking  any 
precautions  w^as  such  negligence  as  to  constitute  manslaughter.  R,.  v. 
Salmon,  6  Q,.  B.  D.  79 ;  50  L.  J.,  M.  C.  25.  See  this  case,  ante,  p. 
183. 

Contributory  negligence.  It  has  been  frequently  attempted  in 
these  cases  to  set  up  the  civil  doctrine  of  contributory  negligence  as  a 
defence.  The  law  upon  this  point  does  not  appear  to  be  settled  ;  but 
it  is  submitted  that  the  rule  in  criminal  cases  is  that,  assuming  the 
negligence  of  the  deceased,  if  the  death  was  caused  also  by  negligence 


on  the  part  *of  the  defendant,  he  is  guilty,  although  under  ex- 


[*732 


tenuating  circumstances.  It  has  been  distinctly  ruled  in  sev- 
eral cases,  that  it  is  no  ground  of  defence  that  the  death  was  partly 
caused  by  the  negligence  of  others.  R.  v.  Ledger,  2  F.  &  F.  857 ; 
R.  V.  Haines,  2  C.  &  K.  368,  61  E.  C.  L. ;  R.  v.  Barrett,  2  C.  &  K. 
343,  61  E.  C.  L. ;  R.  v.  Benge,  4  F.  &  F.  504 ;  and  it  has  also  been 
frequently  ruled  that  it  is  no  ground  of  defence  that  the  death  -^-as 
partly  caused  by  the  negligence  of  the  deceased  himself;  per  Pollock, 
C.  B.,  in  R.  V.  Swindall,  2  C.  &  K.  230,  61  E.  C.  L. ;  per  Garrow,  B,, 
in  R.  V.  Walker,  1  C.  &  P.  320,  12  E.  C.  L. ;  per  Byles,  J.,  in  R.  v. 
Kew,  12  Cox,  C.  C.  355  ;  per  Lush,  J.,  in  R.  v.  Jones,  11  Cox,  C.  C. 
544 ;  R.  V.  Longbottom,  3  Cox,  C.  C.  439 ;  R.  v.  Hutchinson,  9  Cox, 


918  MANSLAUGHTER. 

C.  C.  555.^     There  is,  however,  some  doubt  as  to  the  extent  to  which 
this  doctrine  can  be  carried.     A  man  turned  out  a  horse,  which  he 
knew  to  be  vicious,  on  the  common  over  which  he  knew  people  were 
in  the  habit  of  passing,  and  over  which  they  had  a  right  to  pass  by 
certain  paths.     A  child  was  killed  by  the  horse,  either  on  or  very  near 
one  of  the  paths.     It  was  held  that  the  owner  of  the  horse  was  rightly 
convicted  of  manslaughter,  and  some  of  the  judges  were  disposed  to 
think  that  it  would  have  made  no  difference  if  the  child  had  been  on 
any  part  of  the  common  on  to  which  people  were  in  fact  accustomed  to 
go,  whether  rightfully  or  not.  R.  v.  Dant,  L.  &  C.  567  ;  34  L.  J.,  M.  C. 
119.      See  also   R.  v.  Benge,  supra.      Upon  the   other  hand,  in  the 
case  of  R.  v.  Birchall,  4  F.  &  F.  1087,  Willes,  J.,  said  that  where  the 
deceased  has  contributed  to  his  death  by  his  own  negligence,  although 
there  may  have  been  negligence  on  the  part  of  the  prisoner,  the  latter 
cannot  be  convicted  of  manslaughter,  and  that  until  he  saw  a  decision 
to  the  contrary  he  should  hold  that  a  man  was  not  criminally  responsi- 
ble for  negligence  for  which  he  would  not  be  responsible  in  an  action. 
But  as  to  this  case.  Lush,  J.,  said,  in  R.  v.  Jones,  supra,  that  it  was 
quite  at  variance  with  what  he  had  always  heard  laid  down,  and  in 
R.  V.  Shaw,  Leeds  Summer  Assizes,  1868,  the  same  learned  judge  ruled 
that  at  all  events  a  child  could  not  be  guilty  of  such  contributory 
negligence  as  to  afford  any  defence  to  a  defendant,  who  had  negli- 
gently run  over  it.     In  R.  v.  Kew,  supra,  Byles,  J.,  said,  contribu- 
tory negligence  was   no  defence  either  in  the   case  of  a  child  or  an 
adult.     In  R.  v.  Gregory,  2  F.  &  F.  153,  the  death  was  due  entirely 
to  the  negligence  of  the  deceased,  and  it  was  not  shown  that  the  pris- 
oner was  negligent  at  all.     As  stated  by  Pollock,  C.   B.,  in  R.  v. 
Swindall,  supra,  where  there  is  a  loss  of  life  "  each  party  is  responsible 
for  any  blame  that  may  ensue,  however  large  the  share  may  be,  and 
so  highly  does  the  law  value  human  life  that  it  admits  of  no  justifi- 
cation wherever  life  has  been  lost  and  the  carelessness  and  negligence 
of  any  one  person  has  contributed  to  the  death  of  another  person." 
It  should  always  be  remembered  that  a  trial  for  manslaughter  is  not 
in  the  nature  of  a  suit  between  parties,  but  is  a  prosecution  on  the 
part  of  the  Crown. 

Where  a  person,  practising  medicine  or  surgery,  whether  licensed 
or  unlicensed,  is  guilty  of  gross  negligence,  or  criminal  inattention,  in 
the  course  of  his  employment,  and  in  consequence  of  such  negligence 
or  inattention  death  ensues,  it  is  manslaughter,  but  if  there  is  no 
gross  negligence  it  is  not  manslaughter. 

Killing  by  persons  practising  surgery  or  medicine.  Cases  of 
great  difficulty  and  nicety  have  arisen  with  regard  to  the  question 
of  malice,  where  medicines  have  been  carelessly  or  unskilfully 
^_fv„-|  *administered  by  incompetent  persons.  The  law  on  this  subject 
-'  is  thus  laid  down  by  Lord  Hale :  "If  a  physician  gives  a 
person  a  potion  without  any  intent  of  doing  him  any  bodily  hurt,  but 

•  In  an  indictment  for  manslaughter  by  culpable  negligence,  contributory  negligence 
is  no  defence.     People  v.  Buddensieck,  4  N.  Y.  Crim.  Rep.  230. 


MANSLAUGHTER.  919 

with  intent  to  cure  or  prevent  a  disease,  and  contrary  to  the  expectation 
of  the  physician,  it  kills  him,  this  is  no  homicide;  and  the  like  of  a 
surgeon.  And  1  hold  their  (){)inion  to  be  erroneous  that  think,  if  it 
be  no  licensed  surgeon  or  physician  that  occasions  this  mischance,  then 
it  is  a  felony,  for  physic  and  salves  were  before  licensed  physicians  and 
surgeons,  and  therefore,  if  they  be  not  licensed  according  to  the  stat- 
utes, they  are  subject  to  the  penalties  in  the  statutes,  but  God  forbid 
that  any  mischance  of  this  kind  should  make  any  person  not  licensed 
guilty  of  murder  or  manslaughter."^  1  Hale,  V.  C.  429.  Upon  the 
latter  point  8ir  William  Blackstone  appears  to  concur  in  opinion  with 
Lord  Hale.  If  a  physician  or  surgeon,  he  says,  gives  his  patient  a 
potion  or  plaister  to  cure  him,  which,  contrary  to  expectation,  kills 
him,  this  is  neither  murder  nor  manslaughter,  but  misadventure,  and 
he  shall  not  be  punished  criminally,  however  liable  he  might  foruKirly 
have  been  to  a  civil  action  for  neglect  or  ignorance;  but  it  has  been 
held  that  if  he  be  not  a  regular  physician  or  surgeon  who  administers 
the  medicine  or  performs  the  operation  it  is  manslaughter  at  the  least. 
Yet  Sir  M.  Hale  very  justly  questions  the  law  of  this  determi- 
nation. 4  Bl.  Com.  c.  14.  The  correctness  of  Sir  M.  Hale's  opinion 
has  been  recognized  in  several  late  cases.  Thus,  in  R.  v.  Van  Butchell, 
3  C.  &  P.  632,  14  E.  C.  L.,  Hullock,  B.,  ruled  that  it  made  no  differ- 
ence whether  the  party  was  a  regular  or  an  irregular  surgeon  ;  adding, 
that  in  remote  parts  of  the  country  many  persons  would  be  left  to  die, 
if  irregular  surgeons  were  not  allowed  to  practise.  The  same  opinion 
was  expressed  by  Park,  J.,  in  a  subsequent  case,  in  which  he  observed, 
that  whether  the  party  was  licensed  or  unlicensed,  is  of  no  consequence 
except  in  this  respect,  that  he  may  be  subject  to  pecuniary  penalties  for 
acting  contrary  to  charters  or  Acts  of  parliament.  R.  v.  Long,  4  C. 
&  P.  398,  19  E.  C.  L.  But  whether  the  party  be  licensed  or  unli- 
censed, if  he  display  gross  ignorance,  or  criminal  inattention,  or  cul- 
pable rashness,  in  the  treatment  of  his  patient,  he  is  criminally  re- 
sponsible. There  is  no  doubt,  says  Mr.  Baron  Hullock,  that  there 
may  be  cases  where  both  regular  and  irregular  surgeons  may  be  liable 
to  an  indictment,  as  there  may  be  cases  where  from  the  manner  of  the 
operation  even  malice  might  be  inferred.  R,.  v.  Van  Butchell,  3  C.  & 
P.  633,  14  E.  C.  L.;  4  C.  &  P.  407,  19  E.  C.  L.  Where  a  person 
who,  though  not  educated  as  a  surgeon,  had  been  in  the  habit  of  acting 
as  a  man-midwife,  and  had  unskilfully  treated  a  woman  in  childbirth, 
in  consequence  of  which  she  died,  was  indicted  for  the  murder,  Lord 
EUenborough  said  there  has  not  been  a  particle  of  evidence  adduced 
that  the  prisoner  was  guilty  of  murder,  but  it  was  for  the  jury  to  con- 
sider whether  the  evidence  went  so  far  as  to  make  out  a  case  of  man- 
slaughter. To  substantiate  that  charge  the  prisoner  must  have  been 
guilty  of  criminal  misconduct,  arising  either  from  the  grossest  ignorance 

*  Ann  V.  State,  11  Humph.  159 ;  Commonwealth  v.  Thompson,  6  Mass.  134 ;  s.  c.  2 
Wheel.  C.  C.  312.  To  attempt  to  produce  a  miscarriage,  except  when  in  proper  pro- 
fessional judgment  it  is  necessary  to  preserve  the  life  of  the  woman,  is  indictable  as 
a  misdemeanor.  If  it  results  in  death,  it  will  be  murder  in  the  second  degree. 
State  V.  Moore,  25  la.  128.    S. 


920  MANSLAUGHTER. 

or  the  must  criminal  inattention.  One  or  other  of  these  was  necessary 
to  make  him  guilty  of  that  criminal  negligence  and  misconduct  which 
are  essential  to  make  out  a  case  of  manslaughter.  R.  v.  William- 
son, 3  C.  <&  P.  635,  14  E.  C.  L.  This  ruling  was  cited  with 
approbation  by  Parke,  J.,  in  R.  v.  Long,  4  C.  &  P.  423,  19 
E.  C.  L.,  where  he  held  that,  to  support  the  charge  of  manslaughter, 
it  must  appear  that  there  was  gross  ignorance  or  inattention  to  human 
life.  In  R.  V.  Long,  4  C.  &  P.  423,  19  E.  C.  L.,  a  case  was 
cited  by  counsel  as  having  occurred  on  the  northern  circuit,  where  a 
*7'^4-1  *™^'^  ^"^^^o  ^^^  drunk  went  and  delivered  a  woman,  who,  by  his 
-I  mismanagement,  died,  and  he  was  sentenced  to  six  months' 
imprisonment.  And  where  a  person  grossly  ignorant,  undertook  to 
deliver  a  woman  and  killed  the  child  in  the  course  of  the  delivery,  it 
was  resolved  by  the  judges  that  he  was  rightly  convicted  of  man- 
slaughter. R.  V.  Senior,  1  Moo.  C  C.  346.  The  rule  with  regard  to 
the  degree  of  misconduct  which  will  render  a  person  practising  medi- 
cine criminally  answerable  is  thus  laid  down  by  Mr.  Justice  Bayley : 
"  It  matters  not  whether  a  man  has  received  a  medical  education  or 
not.  The  thing  to  look  at  is,  whether,  in  reference  to  the  remedy  he 
has  used,  and  the  conduct  he  has  displayed,  he  has  acted  with  a  due 
degree  of  caution,  or,  on  the  contrary,  has  acted  with  gross  and  im- 
proper rashness  and  want  of  caution.  I  have  no  hesitation  in  saying, 
that  if  a  man  be  guilty  of  gross  negligence  in  attending  to  his  patient, 
after  he  has  applied  a  remedy,  or  of  gross  rashness  in  the  application 
of  it,  and  death  ensues  in  consequence,  he  will  be  liable  to  a  conviction 
for  manslaughter."  R.  v.  Long,  4  C.  &  P.  423,  19  E.  C.  L.  The 
prisoner  was  indicted  for  manslaughter.  It  appeared  that  the  deceased, 
a  sailor,  had  been  discharged  from  the  Liverpool  infirmary  as  cured, 
after  undergoing  salivation,  and  that  he  was  recommended  by  another 
patient  to  go  to  the  prisoner  for  an  emetic,  to  get  the  mercury  out  of 
his  bones.  The  prisoner  was  an  old  woman,  residing  in  Liverpool, 
who  occasionally  dealt  in  medicines.  She  gave  him  a  solution  of  cor- 
rosive sublimate,  one  dose  of  which  caused  his  death.  She  said  she 
had  received  the  mixture  from  a  person  who  came  from  Ireland  and 
had  gone  back  again.  Mr.  Justice  Bayley,  in  addressing  the  jury, 
said,  "  I  take  it  to  be  perfectly  clear,  that  if  a  person,  not  of  medical 
education,  in  a  case  where  professional  aid  ought  to  be  obtained,  under- 
takes to  administer  medicines  which  may  have  a  dangerous  eifect,  and 
thereby  occasions  death,  such  person  is  guilty  of  manslaughter.  He 
may  have  no  evil  intention,  and  may  have  a  good  one,  but  he  has  no 
right  to  hazard  the  consequences  in  a  case  where  medical  assistance  may 
be  obtained.  If  he  does  so,  it  is  at  his  own  peril.  It  is  immaterial 
whether  the  person  administering  the  medicine  prepares  it,  or  gets  it 
from  another."  R.  v.  Simpson,  Wilcock  on  Laws  of  Med.  Prof. 
Appendix,  227  ;  4  C.  &  P.  407  (n),  19  E.  C.  L;  1  Lewin,  C.  C.  172. 
The  prisoner  was  indicted  for  manslaughter.  It  appeared  that  the  de- 
ceased, a  child,  being  afflicted  with  a  scald-head,  the  prisoner  had  di- 
rected a  plaister  to  be  applied,  from  the  effects  of  which  the  child  was 
supposed  to  have  died.     Bolland,  B.,  addressing  the  jury,  said,  ^'  The 


MANSLAUGHTER.  921 

law  as  I  am  bound  to  lay  it  down,  as  it  has  been  agreed  upon  by  the 
judges  (for  cases  of  this  kind  have  occurred  of  late  more  frequently 
than  in  former  times),  is  this — if  any  i)erson,  whetlier  he  be  a  I'cgular 
or  licensed  medical  man  or  not,  professes  to  deal  with  the  life  or  health  of 
his  Majesty's  subjects,  he  is  bound  to  have  competent  skill  to  perform 
the  task  that  he  holds  himself  out  to  perform,  and  he  is  bound  to  treat 
his  patients  with  care,  attention,  and  assiduity."  11,  v.  Spiller,  -5  C.  & 
P.  333,  24  E.  C.  L.  The  direction  given  by  Tindal,  C.  J.,  in  a 
case  of  this  kind,  where  the  prisoner  was  charged  with  neglecting 
to  attend  and  take  dne  care  of  a  woman  during  her  delivery,  was 
as  follows :  "  You  are  to  say,  whether  in  the  execution  of  the 
duty  which  the  prisoner  had  undertaken  to  perform  he  is  proved 
to  have  shown  such  a  gross  want  of  care,  or  such  a  gross  and 
culpable  want  of  skill,  as  any  person  undertaking  such  a  charge 
ought  not  to  be  guilty  of,  and  that  the  death  of  the  person  named  in 
*the  indictment  was  caused  thereby."  R.  v.  Ferguson,  1  Lewin,  r^YOK 
C  C  181.  In  a  case  which  occurred  before  Lord  Lyndhurst,  •- 
C.  B.,  upon  an  indictment  for  manslaughter  the  law  on  this  subject  was 
thus  laid  down  by  his  lordship  :  "  I  agree  that  in  these  cases  there  is  no 
difference  between  a  licensed  physician  or  surgeon,  and  a  person  acting 
as  physician  or  surgeon  without  a  license.  In  either  case,  if  a  party 
having  a  competent  degree  of  skill  and  knowledge,  makes  an  acci- 
dental mistake  in  his  treatment  of  a  patient,  through  which  death 
ensues,  he  is  not  thereby  guilty  of  manslaughter  ;  but  if,  where  proper 
medical  assistance  can  be  had,  a  person,  totally  ignorant  of  the  science 
of  medicine,  takes  upon  himself  to  administer  a  violent  and  danger- 
ous remedy  to  one  laboring  under  disease,  and  death  ensues  in  con- 
sequence of  that  dangerous  remedy  having  been  so  administered, 
then  he  is  guilty  of  manslaughter.  If  I  had  the  least  doubt  of  this 
position,  I  might  fortify  it  by  referring  to  the  opinion  of  Lord  Ellen- 
borough  in  R.  V.  Williamson  (ante,  p.  733).  I  shall  leave  it  to  the 
jury  to  say  whether  death  was  occasioned  or  accelerated  by  the 
medicines  administered ;  and  if  they  say  it  was,  then  I  shall  tell 
them,  secondly,  that  the  prisoner  is  guilty  of  manslaughter,  if 
they  think  that  in  so  administering  the  medicines,  he  acted  either 
with  a  criminal  intention,  or  from  any  gross  ignorance."  R.  v  Webb, 
1  jNIuo.  &  ilob.  405;  2  Lew.  C.  C.  196.  See  also  R.  v.  Markuss, 
4  F.  &  F.  356.  The  prisoner,  who  was  indicted  for  manslaughter, 
had,  for  nearly  thirty  years,  carried  on  the  business  of  an  apothecary 
and  man-midwife  in  the  county  of  York,  and  was  qualified  by  law  to 
carry  on  that  ])rofession.  His  practice  was  very  considerable,  and  he 
had  attended  the  deceased  on  the  birth  of  all  her  children.  It 
appeared  that  on  the  occasion  in  question  he  made  use  of  a  metal 
instrument,  known  in  midwifery  by  the  name  of  a  vectls,  or  lever,  in- 
flicting thereby  such  grievous  injuries  on  the  person  of  tiie  deceased 
as  to  cause  her  death  within  three  hours.  It  was  proved  by  the 
medical  witnesses  that  the  instrument  was  a  very  dangerous  one,  and 
that  at  that  period  of  the  labor  it  was  very  improper  to  use  it  at  all ; 
and  also,  that  it  must  have  been  used  in  a  very  improper  way,  and  in 


922  MANSLAUGHTER.  , 

an  entirely  wrong  direction.  Coleridge,  J.,  told  the  jury  that  the 
questions  for  them  to  decide  were,  whether  the  instrument  had  caused 
the  death  of  the  deceased,  and  whether  it  had  been  used  by  the  pris- 
oner with  due  and  proper  skill  and  caution,  or  with  gross  want  of 
skill  or  gross  want  of  attention.  No  man  was  justified  in  making 
use  of  an  instrument,  in  itself  a  dangerous  one,  unless  he  did  so  with 
a  proper  degree  of  skill  and  caution.  If  the  jury  thought  that  in  this 
instance  the  prisoner  had  used  the  instrument  with  gross  want  of 
skill  or  gross  want  of  caution,  and  that  the  deceased  had  thereby  lost 
her  life,  it  would  be  their  duty  to  find  the  prisoner  guilty.  The  pris- 
oner was  convicted.  R,  v.  Spilling,  2  Moo.  &  R.  107.  A  chemist, 
likewise,  who  negligently  su{)plies  a  wrong  drug,  in  consequence  of 
which  death  ensues,  is  guilty  of  manslaughter.  The  apprentice  to  a 
chemist  by  mistake  delivered  a  bottle  of  laudanum  to  a  customer, 
who  asked  for  paregoric ;  and  a  portion  of  the  laudanum  being  ad- 
ministered to  a  child  caused  its  death.  The  apprentice  being  indicted 
for  manslaughter,  Bayley,  J.,  directed  the  jury,  that  if  they  thought 
him  guilty  of  negligence,  they  should  find  him  guilty  of  the  man- 
slaughter. R.  V.  Tessymond,  1  Lewin,  C.  C  169.  See  also  R.  v.  Carr, 
ante,  p.  729. 


*736] 


*Neglect  of  duty.  A  person  may,  by  a  neglect  of  duty,  ren- 
der himself  liable  to  be  convicted  of  manslaughter ;  as  where 
an  engineer,  employed  to  manage  a  steam-engine,  used  to  draw  up 
miners  from  a  coal-pit,  left  the  engine  in  charge  of  a  boy  who  he  knew 
was  incapable  of  managing  it,  and  death  ensued  in  consequence  to  one 
of  the  miners,  the  engineer  was  held  by  Campbell,  C.  J.,  to  be  guilty 
of  manslaughter.  R.  v.  Lowe,  3  C.  &  K.  123.  .See  also  R.  v.  Haines, 
2  C.  &  K.  368,  47  E.  C.  L.;  R.  v.  Hughes,  Dears.  &  B.  248,  see  post, 
p.  763 ;  and  R.  v.  Barrett,  2  C.  &  K.  343,  47  E.  C.  L.^ 

Trustees,  appointed  under  a  local  Act  for  the  purpose  of  repairing 
roads  in  a  district,  with  power  to  contract  for  executing  such  repair, 
are  not  chargeable  with  manslaughter  if  a  person,  using  one  of  such 
roads,  is  accidentally  killed  in  consequence  of  the  road  being  out  of 
repair  through  neglect  of  the  trustees  to  contract  for  repairing  it. 
R.  V.  Pollock,  17  Q.  B.  34,  79  E.  C.  L. 

In  R.  V.  Waters,  1  Den.  C.  C.  R.  356  ;  18  L.  J.,  M.  C.  53,  the  pris- 
oner was  held  to  be  properly  convicted  of  the  manslaughter  of  her 
infant  female  child,  being  of  such  tender  age  and  feebleness  as  to  be 
incompetent  to  take  charge  of  herself,  upon  an  indictment  which 
stated  the  death  to  have  been  caused  by  exposure,  whereby  the  child 
became  mortally  chilled,  frozen,  and  benumbed. 

Where  the  grandmother  of  a  child  chose  to  undertake  the  charge 
of  an  infant,  she  was  held  bound  to  execute  such  charge  without 
wicked  negligence.  Brett,  J.,  said,  "  There  must  be  negligence  so 
great  as  to  satisfy  a  jury  that  the  offender  had  a  wicked  mind  in  the 

*  Where  the  duty  neglected  is  a  known  duty,  it  is  not  necessary  to  allege  or  prove 
a  criminal  intent  on  the  part  of  the  defendant.    State  v.  Smith,  65  Me.  257. 


MANSLAUGHTER.  923 

sense  of  being  reckless  and  careless  whether  death  occurred  or  not." 
R.  V.  Nicholls,  13  Cox,  C.  C.  75.  As  to  charges  of  murder  by  neglect 
of  children,  see  p.  764,  and  as  to  abandonment  of  children,  see  p. 
398. 

But  where  there  is  no  legal  duty  to  give  assistance,  wliich  might 
have  been  given,  and  would  have  saved  the  life  of  the  person  in  need 
of  it,  the  withholding  of  such  assistance  appears  not  to  be  criminal, 
as  where  a  mother  omitted  to  procure  tlie  assistance  of  a  midwife  for 
her  daughter,  a  girl  of  eighteen  years  of  age,  who  was  taken  in  labor 
in  the  mother's  house  in  the  absence  of  the  mother's  husband.  R.  v. 
Shepherd,  L.  &  C.  147. 

On  the  other  hand,  a  wilful  neglect  of  a  duty  imposed  by  statute, 
will,  if  death  ensues  in  consequence  of  such  neglect,  amount  to  man- 
slaughter by  the  person  so  neglecting. 

By  the  31  &  32  Vict.  c.  122,  s.  37,  when  any  parent  shall  wilfully 
neglect  to  provide  adequate  food,  clothing,  medical  aid,  or  lodging  for 
his  child,  being  in  his  custody,  under  the  age  of  fourteen  years, 
whereby  the  health  of  such  child  shall  have  been,  or  shall  be  likely 
to  be,  seriously  injured,  he  shall  be  guilty  of  an  oifence  punishable 
on  summary  conviction.  The  prisoner,  who  belonged  to  a  sect 
styling  themselves  "  peculiar  people/'  was  indicted  for  the  man- 
slaughter of  his  infant  child  by  neglecting  to  call  in  medical  advice 
when  the  child  was  ill.  It  was  proved  that  the  child,  after  being  ill 
and  wasting  for  eight  or  nine  months  from  chronic  inflammation  of 
the  lungs  and  pleura,  had  died.  The  prisoner,  in  accordance  with 
the  custom  of  the  "  peculiar  people,"  did  not  call  in  medical  aid, 
but  called  in  the  elders  of  the  church  to  pray  over  the  sick  child  ;  he 
also  consulted  the  person  called  in  to  pray  over  the  child,  but  neither 
had  such  person  or  the  prisoner  himself  any  medical  skill.  They 
thought  the  child  was  teething,  and  gave  it  such  diet  as  they  thought 
*suitable.  The  prisoner  had  sufficient  means  to  procure  medi-  r*7q7 
cal  advice,  which  was  easily  obtainable.  It  was  found  by  the  ^ 
jury,  that  the  prisoner  wilfully  neglected  to  provide  medical  aid,  where, 
it  was  in  fact  reasonable  so  to  do,  and  he  had  the  ability,  and  that 
death  was  caused  by  such  neglect ;  and,  upon  a  conviction  for  man- 
slaughter under  the  above  facts,  the  court  held  that  the  prisoner  was 
properly  convicted,  on  the  ground  that  the  above  statute  imposed  a 
positive  duty  to  provide  medical  aid  when  necessary,  and  that  death 
had  ensued  in  consequence  of  that  duty  having  been  wilfully  neglected 
bv  the  prisoner.  R.  v.  Downes,  L.  R.  1  Q.  B.  D.  25 ;  45  L.  J.,  M. 
C.  8. 

In  order  to  justify  a  verdict  of  manslaughter  there  must  be  positive 
evidence  that  the  death  was  caused  or  accelerated  by  the  neglect  of  a 
duty.  Where  the  evidence  only  went  to  show  that  proper  medical 
aid  and  attendance  might  have  saved  or  prolonged  the  child's  life  and 
would  have  increased  its  chance  of  recovery,  but  that  it  might  have 
been  of  no  avail,  the  Court  of  Crown  Cases  Reserved  held  tliat, 
although  there  was  a  neglect  of  duty,  yet  a  conviction  for  manslaughter 
could  not  be  sustained,  because   it  was  not  shown   that  the  neglect 


924  MANSLAUGHTER. 

had  the  effect  of  shortening  life.    R.  v.  Morby,  8  Q.  B.  D.  571 ;  51 
L.  J.,  M.  C.  85. 

Correction  of  child  by  parent  or  others.  Parents,  masters,  and 
other  persons  having  authority  in  foro  domedico  may  give  reasonable 
correction  to  those  under  their  care,  and  if  death  ensue  without  their 
fiiult  it  will  be  no  more  than  accidental  death.  1  Russ.  Cri.  773,  5th 
ed.,  but  if  the  correction  exceed  the  bounds  of  due  moderation  and 
death  ensue,  it  will  be  murder  or  manslaughter  according  to  circum- 
stances, see  the  cases  pos^,  "  Murder,"  p.  7G9. 

And  see  ante,  tit.  "  Ill-treating  Apprentices,"  and  post,  tit.  "  Mur- 
der." 

Killing  in  defence  of  person  or  property.  The  rule  of  law  upon 
this  subject  is  tlms  laid  down  by  Mr.  East.  A  man  may  repel  force 
by  force,  in  defence  of  his  person,  habitation,  or  property,  against  one 
who  manifestly  intends  or  end  eavors  by  violence  or  surprise  to 
commit  a  known  felony,  such  as  rape,  robbery,  arson,  burglary,  or 
the  like.  In  these  cases  he  is  not  obliged  to  retreat,  but  may  pursue 
his  adversary  until  he  has  secured  himself  from  all  danger,  and 
if  he  kill  him  in  so  doing  it  is  justifiable  self-defence;  as  on  the 
other  hand,  the  killing  by  such  felons  of  any  person  so  lawfully 
defending  himself  will  be  murder.  But  a  bare  fear  of  any  of  these 
offences,  however  well  grounded,  as  that  another  lies  in  wait  to  take 
away  the  party's  life,  unaccompanied  by  any  overt  act  indicative 
of  such  an  intention,  will  not  warrant  him  in  killing  that  other 
by  way  of  precaution,  there  being  no  actual  danger  at  the  time. 
1  East,  P.  C.  271,  272.^  Not  only  is  the  party  himself,  whose  person 
or  property  is  the  object  of  the  felonious  attack,  justified  in  resisting, 
in  the  manner  above  mentioned,  but  a  servant  or  any  other  person 
may  lawfully  interpose,  in  order  to  prevent  the  intended  mischief. 
Thus,  in  the  instances  of  arson  and  burglary,  a  lodger  may  lawfully 
kill  the  assailant  in  the  same  manner  as  the  owner  himself  might  do, 
but  subject  to  the  same  limitations.  {8ed  vide  post,  p.  742.)  In  this 
case  there  seems  to  be  no  difference  between  the  case  of  the  person 
assaulted,  and  those  who  come  in  aid  against  such  felons.  The  legis- 
lature itself  seems  to  have  considered  them  on  the  same  footing,  for 
in  the  case  of  the  Marquis  de  Guiscard,  who  stabbed  Mr.  Harley 
j^«oo-|  *  while  sitting  in  council,  they  discharged  the  party  who  gave 
-J  the  mortal  wound  from  all  manner  of  prosecution  on  that  ac- 
count, and  declared  the  killing  to  be  a  lawful  and  necessary  action.  (9 

'  Self-defence  can  only  be  introduced  as  a  defence  against  a  felonious  assault.  The 
assailed,  except  in  the  special  cases  mentioned  in  the  text,  must  retreat  as  far  as  he 
can  in  safety.  Nothing  excuses  homicide  except  immediate  necessity.  Brown  v. 
State,  74  Ala.  478  ;  Harrison  v.  State,  78  Id.  5.  It  is  not  self-defence  where  the  slayer 
follows  the  deceased  up.  Hughes  t).  People,  116  111.  330.  Self-defence  cannot  be  set 
up  in  mutual  combat.  Lee  v.  State,  21  Tex.  Apo.  241.  Nor  where  the  defendant  seeks 
or  brings  on  a  difficulty.  Thuston  v.  State,  21  Tex.  App.  245  ;  Roach  v.  State,  Id. 
249.  It  is  a  good  defence  in  parricide,  as  well  as  against  any  other  charge  of  murder. 
People  V.  Walworth,  4  N.  Y.  Crim.  Eep.  355.    See  infra,  p.  *S04. 


MANSLAUGHTER.  925 

Anne,  c.  16,  repealed.)  1  East,  P.  C.  289 ;  Foster,  274 ;  R.  v.  Cooper, 
Cro.  Car.  544. 

With  regard  to  the  nature  of  the  intended  offence,  to  prevent 
which  it  is  lawful  instantly  to  use  the  last  violence,  and  to  put  the 
assailant  to  death,  it  is  only  to  such  crimes  as  in  their  nature  betoken 
an  urgent  necessity,  which  admits  of  no  delay,  that  the  rule  extends. 
Of  this  nature  are  what  have  been  termed  known  felonies,  in  contra- 
distinction as  it  seems  to  such  secret  felonies  as  may  be  committed 
without  violence  to  the  person,  such  as  picking  the  pocket,  etc. 
Foster,  274  ;  1  East,  P.  C.  273.  Where  an  attempt  is  made  to 
murder  or  to  rob,  or  to  ravish,  or  to  commit  burglary,  or  to  set 
fire  to  a  dwelling-house,  if  the  attack  be  made  by  the  assailant  with 
violence  and  by  surprise,  the  party  attacked  may  lawfully  put  him  to 
death.     Id. 

A  statute  passed  in  the  24  Hen.  8,  c.  5  (now  repealed),  upon  this 
subject,  in  affirmance  of  the  common  law,  after  reciting  that  it  had 
been  doubted  whether,  if  any  person  should  attempt  feloniously  to  rob 
or  murder  any  persons  in  or  near  any  common,  highway,  cartway,  or 
footway,  or  in  their  mansions,  messuages,  or  dwelling-places,  or 
attempt  to  break  any  dwelling-house  in  the  night-time,  and  should 
happen  in  such  felonious  intent  to  be  slain  by  those  whom  they  should 
attempt  so  to  rob  or  murder,  by  any  person  being  in  their  dwelling- 
house  attempted  to  be  broken  open,  the  person  so  happening  to  slay 
the  person  so  attempting  to  commit  murder  or  burglary,  should  forfeit 
goods  and  chattels  :  enacts  that  if  any  person  or  persons  be  indicted 
or  appealed,  or  for  the  death  of  any  such  evil-disposed  person  or  per- 
sons attempting  to  rob,  murder,  or  burglariously  to  break  mansion- 
houses,  as  is  above  said,  the  person  or  persons  so  indicted  or  appealed 
thereof,  and  of  the  same  by  verdict  so  found  and  tried,  shall  not  for- 
feit or  lose  any  lands,  tenements,  goods,  or  chattels,  for  the  death  of 
any  such  evil-disposed  person  in  such  manner  slain,  but  shall  be 
thereof,  and  for  the  same,  fully  acquitted  and  discharged.  Though 
the  statute  only  mentions  certain  cases,  it  must  not  be  taken  to  imply 
an  exclusion  of  any  other  instances  of  justifiable  homicide,  which  stand 
upon  the  same  footing  of  reason  and  justice.  Thus  the  killing  of  one 
who  attempts  the  wilful  burning  of  a  house  is  free  from  forfeiture, 
without  the  aid  of  the  statute  ;  and  though  it  only  mentions  the  break- 
ing a  house  in  the  night-time  (which  must  be  intended  a  breaking  ac- 
companied with  a  felonious  intent),  yet  a  breaking  in  the  day-time 
witli  a  like  purpose  must  be  governed  by  the  same  rule.  1  East,  P. 
C.  272,  273. 

The  rule  extends  to  felonies  only.  Thus,  if  one  comes  to  beat 
another,  or  to  take  his  goods  as  a  trespasser,  though  the  owner  may 
justifv  a  battery  for  the  purpose  of  making  him  desist,  yet  if  he  kill 
him,  It  will  be  manslaughter.  1  Hale,  P.  C.  485,  486 ;  1  East,  P.  C. 
272. 

It  is  not  essential  that  an  actual  felony  should  be  about  to  be  com- 
mitted in  order  to  justify  the  killing.  If  the  circumstances  are  such 
as  that,   after  all   reasonable   caution,  the   party  suspects  that    the 


926  MANSLAUGHTER. 

felony  is  about  to  be  immediately  committed,  he  will  be  justified  in 
making  the  resistance,  as  in  the  following  case: — Levet  being  in  bed 
and  asleep,  his  servant  who  had  procured  Frances  Freeman  to  help 
*7Qol  *^^^''  ^^^  ^^^'^'  work,  went  to  the  door  about  twelve  o'clock  at 
-I  niti-ht,  to  let  her  out,  and  conceived  she  heard  thieves  about  to 
break  into  the  house.  Upon  this  she  awakened  her  master,  telling 
him  what  she  apprehended.  He  took  a  drawn  sword,  and  the  servant 
fearing  that  Freeman  should  be  seen,  hid  her  in  the  buttery.  Mrs. 
Levet  seeing  Freeman  in  the  buttery,  and  not  knowing  her,  conceived 
her  to  be  the  thief,  and  called  to  her  husband,  who  entering  the  but- 
tery in  the  dark,  and  thrusting  before  him  with  his  sword,  struck 
Freeman  under  the  breast,  of  whicli  wounds  she  instantly  died.  This 
was  ruled  to  be  misadventure  only.  R.  v.  Levet,  Cro.  Cas.  538  ;  1 
Hale,  P.  C.  42,  474.  Possibly,  says  Mr.  Justice  Foster,  this  might 
have  been  ruled  manslaughter,  due  circumspection  not  having  been 
used.     Foster,  299. 

Whether  a  person  who  is  assaulted  by  another  will  be  justified  in 
using,  in  the  first  instance,  such  violence  in  his  resistance  as  will  pro- 
duce death,  must  depend  upon  the  nature  of  the  assault,  and  the  cir- 
cumstances under  which  it  is  committed.^  It  may  be  of  such  a  char- 
acter that  the  party  assailed  may  reasonably  apprehend  death,  or  great 
violence  to  his  person,  as  in  the  following  case  : — Ford  being  in  pos- 
session of  a  room  at  a  tavern,  several  persons  persisted  in  having  it, 
and  turning  him  out,  but  he  refused  to  submit,  when  they  drew  their 
swords  upon  Ford  and  liis  company,  and  Ford,  drawing  his  sword, 
killed  one  of  them,  and  it  was  adjudged  justifiable  homicide.  Both 
in  Kelynge  and  in  Foster  a  qtioere  is  added  in  this  case.  But  Mr. 
East  observes  that  though  the  assailants  waited  till  Ford  had  drawn 
his  sword  (which  by  no  means  appears),  yet  if  more  than  one  attacked 
him  at  the  same  time  (and  as  he  was  the  only  one  of  the  party  who 
seems  to  have  resisted,  such  probably  was  the  case),  the  determination 
seems  to  be  maintainable.  R.  v.  Ford,  Kel.  82;  1  East,  P.  C.  243. 
So  in  R.  V.  Mawgridge,  great  violence  was  held  justifiable  in  the  case 
of  a  common  assault.  Mawgridge,  upon  words  of  anger,  threw  a 
bottle  with  great  force  at  the  head  of  Cope,  and  immediately  drew  his 
sword.  Cope  returned  a  bottle  at  the  head  of  Mawgridge,  which  it  was 
held  lawful  for  him  to  do  in  his  own  defence,  and  wounded  him,  for 
Mawgridge,  in  throwing  the  bottle,  showed  an  intention  to  do  some 
great  mischief,  and  his  drawing  immediately  showed  that  he  intended 
to  follow  up  the  blow.  Mawgridge  stabbed  Cope,  and  it  was  ruled  to 
be  murder.  R.  v.  Mawgridge,  Kel.  121  ;  2  Lord  Rayra.  1489  ;  Fos- 
ter, 29G.  Upon  this  case  Mr.  East  has  made  the  following  remarks  : 
— The  words  previously  spoken  by  Cope  could  form  no  justification 
for  Mawgridge,  and  it  was  reasonable  for  the  former  to  suppose  his 
life  in  danger  when  attacked  with  so  dangerous  a  weapon,  and  the  as- 
sault followed  up  by  another  act  indicating  an  intention  of  pursuing 

*  To  establisli  the  plea  of  self-defence  in  a  trial  for  manslaughter,  evidence  that  the 
deceased  was  a  large  and  more  powerful  man  than  defendant,  Held  admissible.  Com- 
monwealth V.  Barnacle,  134  Mass.  215. 


MANSLAUGHTER.  927 

his  life,  and  this  at  a  time  when  he  was  off  his  guard,  and  with- 
out any  warning.  The  latter  circumstance  furnishes  a  main  dis- 
tinction between  this  case  and  that  of  death  ensuing  from  a  com- 
bat where  both  parties  engage  upon  equal  terms ;  for  then,  if  upon 
a  sudden  quarrel,  and  before  any  dangerous  blow  given  or  aimed 
at  eitlier  of  the  parties,  the  one  who  first  has  recourse  to  a  deadly 
weapon  suspends  his  arm  till  he  has  warned  the  other,  and  given 
him  time  to  put  himself  upon  his  guard,  and  afterAvards  they  en- 
gage upon  equal  terms ;  in  such  case  it  is  plain  that  the  intent  of 
the  person  making  such  assault  is  not  so  much  to  destroy  his  adver- 
sary, at  all  events,  as  to  combat  with  him,  and  run  the  hazard  of 
losing  his  own  life  at  the  same  time.  And  that  would  fall  within 
*the  same  common  principle  which  governs  the  case  of  a  sud-  r*^^^ 
den  combat  upon  heat  of  blood.  But  if  several  attack  a  per-  L  '"*" 
son  at  once  with  deadly  weapons,  as  may  be  supposed  to  have  hap- 
pened in  Ford's  case  (supra),  though  they  wait  till  he  be  upon  his 
guard,  yet  it  seems  (there  being  no  compact  to  fight)  that  he  would  be 
justified  in  killing  any  of  the  assailants  in  his  OAvn  defence,  because  so 
unequal  an  attack  resembles  more  a  desire  of  assassination  than  of 
combat.     1  East,  P.  C.  276. 

An  assault  with  intent  to  chastise,  although  the  party  making  the 
assault  has  no  legal  right  to  inflict  chastisement,  will  not  justify  the 
party  assaulted  in  killing  the  assailant.  The  prisoner,  who  was  in- 
dicted for  the  murder  of  his  brother,  appeared  to  have  come  home 
drunk  on  the  night  in  question.  His  father  ordered  him  to  go  to  bed 
but  he  refused,  upon  which  a  scuffle  ensued  between  them.  The  de- 
ceased, a  brother  of  the  prisoner,  who  was  in  bed,  hearing  the  disturb- 
ance, got  up,  threw  the  prisoner  on  the  ground,  and  fell  upon  him 
and  beat  him,  the  prisoner  not  being  able  to  av^oid  his  blows,  or  to 
make  his  escape.  As  they  were  struggling  together,  the  prisoner  gave 
his  brother  a  mortal  wound  with  a  penknife.  This  was  unanimously 
held  by  the  judges  to  be  manslaughter,  as  there  did  not  appear  to  be 
any  inevitable  necessity  so  as  to  excuse  the  killing  in  that  manner. 
The  deceased  did  not  appear  to  have  aimed  at  the  prisoner's  life,  but 
only  to  chastise  him  for  his  misbehavior  to  his  father.  R.  v.  Nailor 
1  East,  P.  C.  277.  The  circumstances  in  the  following  case  were  very 
similar  : — The  prisoner  and  the  brother  of  the  prosecutor  were  fight- 
ing, on  which  the  prosecutor  laid  hold  of  the  prisoner  to  prevent  him 
from  hurting  his  brother,  and  held  him  down,  but  did  not  strike  him, 
and  the  prisoner  stabbed  him  with  a  knife  above  the  knee.  The 
prisoner  being  indicted  for  stabbing,  under  the  repealed  9  Geo.  4,  c  31 
Mr.  Justice  James  Parke  said :  The  prosecutor  states  that  he  was 
merely  restraining  the  prisoner  from  beating  his  brother,  which  was 
proper  on  his  part.  If  you  are  of  opinion  that  he  did  nothing  more 
than  was  necessary  to  prevent  the  prisoner  from  beating  his  brother 
the  crime  of  the  prisoner,  if  death  had  ensued,  would  not  have  been 
reduced  to  manslaughter ;  but  if  you  think  that  the  prosecutor  did 
more  than  was  necessary  to  prevent  the  prisoner  from  beating  his 
brother,  or  that  he  struck  the  prisoner  any  blows,  then  I  think  that  it 


928  MANSLAUGHTER. 

would.  You  will  consider  whether  anything  was  done  by  the  prose- 
cutor more  than  was  necessary,  or  whctiier  he  gave  any  blows  before 
he  was  struck.  R.  v.  Bourne,  5  C.  &  P.  120,  24  E.  C.  L.  At  the 
conference  of  the  judges  upon  R.  v.  Nailor  (supra),  Powell,  J.,  by 
way  of  illustration,  put  the  following  case  : — If  A.  strike  B.  with- 
out any  weapon,  and  B.  retreat  to  a  wall,  and  there  stab  A.,  it 
will  be  manslaughter,  which  Holt,  C.  J.,  said  was  the  same  as 
the  principal  case,  and  that  was  not  denied  by  any  of  the  judges. 
For  it  cannot  be  inferred  from  the  bare  act  of  striking,  without  some 
dangerous  weapon,  that  the  intent  of  the  aggressor  rose  so  high  as  the 
death  of  the  party  struck,  and  unless  there  be  a  plain  manifestation 
of  a  felonious  intent,  no  assault,  however  violent,  will  justify  killing 
the  assailant  under  the  plea  of  necessity.  1  East,  P.  C.  277.  But, 
in  order  to  render  the  killing  in  these  cases  justifiable,  it  must  appear 
that  the  act  was  done  from  mere  necessity,  and  to  avoid  the  imme- 
diate commission  of  the  offence.  Thus  a  person  who,  in  the  case  of 
a  mutual  conflict,  would  excuse  himself  upon  the  ground  of  self- 
defence,  must  show  that  before  the  mortal  stroke  given,  he  had 
*7J.i1  *c^Gclined  any  further  combat,  and  retreated  as  far  as  he  could 
-'  with  safety,  and  that  he  had  killed  his  adversary  through  mere 
necessity,  and  to  avoid  immediate  death.  If  he  fail  in  either  of  these 
circumstances,  he  will  incur  the  penalty  of  manslaughter.  Foster, 
277. 

Again,  to  render  the  party  inflicting  death  under  the  foregoing  cir- 
cumstances justifiable,  it  must  appear  that  he  was  wholly  without  any 
fault  imputable  to  him  by  law  in  bringing  the  necessity  upon  himself. 
Therefore,  where  A.,  with  many  others,  had,  on  pretence  of  title, 
forcibly  ejected  B.  from  his  house,  and  B.  on  the  third  night  returned 
with  several  persons  with  intent  to  re-enter,  and  one  of  B.'s  friends 
attempted  to  fire  the  house,  whereupon  one  of  A.'s  party  killed  one 
of  B.'s  with  a  gun,  it  was  held  manslaughter  in  A.,  because  the  enter- 
ino;  and  holding  with  force  were  illegal.  Hawk.  P.  C.  b.  1,  c.  28, 
s.  22. 

It  is  to  be  observed,  that  killing  in  defence  of  the  person  will 
amount  either  to  justifiable  or  excusable  homicide,  or  chance-medley  as 
the  latter  is  termed,  according  to  the  circumstances  of  the  case.  Self- 
defence,  upon  chance-medley,  implies  that  the  party,  Avhen  engaged  in 
a  sudden  affray,  quits  the  combat  before  a  mortal  wound  is  given,  and 
retreating  as  far  as  he  can  with  safety,  urged  by  necessity,  kills  his 
adversary  for  the  preservation  of  his  own  life.  Foster,  276.  It  has 
been  observed,  that  this  case  borders  very  nearly  upon  manslaughter, 
that  in  practice  the  boundaries  are  in  some  instances  scarcely  percepti- 
ble. In  both  cases  it  is  presumed  that  the  passions  have  been  kindled 
on  both  sides,  and  that  blows  have  passed  between  the  parties;  but  in 
manslaughter  it  is  either  presumed  that  the  combat  has  continued  on 
both  sides  till  the  mortal  stroke  was  given,  or  that  the  party  giving 
such  stroke  was  not  at  that  time  in  imminent  danger  of  death.  Foster, 
276,  277.  The  true  criterion  between  manslaughter  and  excusable 
homicide,  or  chance-medley,  is  thus  stated  by  Sir  William  Blackstone  : 


MANSLAUGHTER.  929 

When  both  parties  are  actually  combatting  at  the  time  the  mortal 
stroke  is  given,  the  slayer  is  guilty  of  manslaughter ;  but  if  the  slayer 
has  not  begun  to  fight,  or  (having  begun)  endeavors  to  decline  any 
further  struggle,  and  afterwards  being  closely  pressed  by  his  antago- 
nist, kills  him  to  avoid  his  own  destruction,  this  is  homicide,  excus- 
able by  self-defence.  4  Bl.  Com.  184.  In  all  cases  of  excusable  homi- 
cide, in  self-defence,  it  must  be  taken  that  the  attack  was  made  upon 
a  sudden  occasion,  and  not  premeditated,  or  with  malice.  For  if  one 
attack  another  with  a  dangerous  weapon,  unprepared,  with  intent  to 
murder  him,  that  would  stand  upon  a  different  ground ;  and  in  that 
case,  if  the  party  whose  life  was  sought  killed  the  other,  it  would  be 
in  self-defence,  properly  so  called.  But  if  the  first  assault  be  open 
malice.^  and  the  flight  be  feigned  as  a  pretence  for  carrying  that  malice 
into  execution,  it  would  undoubtedly  be  murder;  for  the  flight  rather 
aggravates  the  crime,  as  it  shows  more  deliberation.  1  East,  P.  C. 
282. 

Where  a  person  is  set  to  watch  premises  in  the  night,  and  shoots  at 
and  kills  another  who  intrudes  upon  them,  the  nature  of  the  offence 
will  depend  upon  the  reasonable  ground  which  the  party  had  to  sus- 
pect the  intentions  of  the  trespasser.  Any  person,  said  Garrow,  B., 
in  a  case  of  this  kind,  set  by  his  master  to  watch  a  garden  or  yard, 
is  not  at  all  justified  in  shooting  at,  or  injuring  in  any  way,  persons 
who  may  come  into  those  premises  even  in  the  night ;  and  if  he  saw 
them  go  into  his  master's  hen-roost,  he  would  still  not  be  justified 
in  *shooting  them.  He  ought  first  to  see  if  he  could  not  r*^ 49 
take  measures  for  their  apprehension.  But  here  the  life  of  the  •- 
prisoner  was  threatened ;  and  if  he  considered  his  life  in  actual  dan- 
ger, he  was  justified  in  shooting  the  deceased  as  he  has  done ;  but  if, 
not  considering  his  own  life  in  danger,  he  rashly  shot  this  man,  who 
was  only  a  trespasser,  he  will  be  guilty  of  manslaughter.  R.  v.  Scully, 
1  a  &P.  319,  12E.  C.L. 

In  the  following  case,  Bayley,  J.,  seems  to  have  been  of  opinion 
that  a  lodger  does  not  enjoy  the  privilege  which,  as  above  stated,  is 
possessed  by  the  owner  of  a  house,  of  standing  to  its  protection,  with- 
out retreating.  Several  persons  tried  to  break  open  the  door  of  a 
house  in  which  the  prisoner  lodged.  The  prisoner  opened  the  door, 
and  he  and  the  parties  outside  began  to  fight.  The  prisoner  was  taken 
into  the  house  again  by  another  person,  but  the  parties  outside  broke 
open  the  door  in  order  to  get  at  the  prisoner,  and  a  scuffle  again  ensued, 
in  which  the  deceased  was  killed  by  the  prisoner  with  a  pair  of  iron 
tongs.  There  was  a  back  door  through  which  the  prisoner  might 
have  escaped,  but  it  did  not  appear  that  he  knew  of  it,  having  only 
come  to  the  house  the  day  before.  Bayley,  J.,  said,  "  If  you  are  of 
opinion  that  the  prisoner  used  no  more  violence  than  was  necessary 
to  defend  himself  from  the  attack  made  upon  him,  you  will  acquit 
him.  The  law  says  a  man  must  not  make  an  attack  upon  others 
unless  he  can  justify  a  full  conviction  in  his  own  mind  that,  if  he  does 
not  do  so,  his  own  life  will  be  in  more  danger.  If  the  prisoner  had 
known  of  the  back  door,  it  would  have  been  his  duty  to  go  out  back- 
59 


930  MANSLAUGHTER. 

wards,  in  order  to  avoid  the  conflict."      R.  v.  Dakin,  1  Lewin,  C.  C. 
166. 

Upon  an  indictment  for  manslaughter  it  apj^eared,  that  the  deceased 
and  his  servant  insisted  on  placing  corn  in  the  prisoner's  barn,  which 
she  refused  to  allow ;  they  exerted  force,  a  scuffle  ensued,  in  which  the 
prisoner  received  a  blow  on  the  breast :  whereupon  she  threw  a  stone 
at  the  deceased,  upon  which  he  fell  down,  and  was  taken  up  dead. 
Holroyd,  J.,  said,  "  The  case  fails  on  two  points :  it  is  not  proved 
that  the  death  was  caused  by  the  blow,  and  if  it  had  been,  it  appears 
that  the  deceased  received  it  in  an  attempt  to  invade  the  prisoner's 
barn  against  her  will.  She  had  a  right  to  defend  the  barn,  and  to 
employ  such  force  as  was  reasonably  necessary  for  that  purpose,  and 
she  was  not  answerable  for  any  unfortunate  accident  that  might  happen 
in  so  doing."  The  prisoner  was  acquitted.  R.  v.  Hinchcliffe,  1  Lewin, 
C.  C.  161.  For  cases  where  the  offence  amounted  to  murder,  see  postf 
tit.  "  Murder." 


MANUFACTURES.  931 


*MANUFACTURES. 


[*743 


Destroying  goods  in  process  of  manufacture.     By  the  24  &  25 

Vict.  c.  97,  s.  14,  "  whosoever  shall  unlawfully  and  maliciously  cut, 
break  or  destroy,  or  damage  with  intent  to  destroy  or  to  render  useless, 
any  goods  or  articles  of  silk,  woollen,  linen,  cotton,  hair,  mohair  or 
alpaca,  or  of  any  one  or  more  of  those  materials  mixed  with  each  other 
or  mixed  with  any  other  material,  or  any  framework-knitted  piece, 
stocking  hose  or  lace,  being  in  the  loom  or  frame,  or  on  any  machine 
or  engine,  or  on  the  rack  or  tenters,  or  in  any  stage,  process  or  pro- 
gress of  manufacture,  or  shall  unlawfully  and  maliciously  cut,  break 
or  destroy,  or  damage  with  intent  to  destroy  or  to  render  useless,  any 
warp  or  shute  of  silk,  woollen,  linen,  cotton,  hair,  mohair  or  alpaca, 
or  of  any  one  or  more  of  those  materials  mixed  with  each  other,  or 
mixed  with  any  other  material,  shall  be  guilty  of  felony,  and  being 
convicted  thereof  shall  be  liable,  at  the  discretion  of  the  court,  to  be 
kept  in  penal  servitude  for  life,  or  for  any  term  not  less  than  three 
[now  five]  years,  or  to  be  imprisoned  for  any  term  not  exceeding  two 
years,  with  or  without  hard  labor,  and  with  or  without  solitary  con- 
finement, and,  if  a  male  under  the  age  of  sixteen  vears,  with  or  with- 
out whipping." 

Stealing  goods  in  the  process  of   manufacture.     By  the  24  &  25 

Vict.  c.  96,  s.  62,  "whosoever  shall  steal  to  the  value  of  ten  shillings 
any  woollen,  linen,  hempen  or  cotton  yarn,  or  any  goods  or  articles  of 
silk,  woollen,  linen,  cotton,  alpaca  or  mohair,  or  of  any  one  or  more 
of  those  materials  mixed  with  each  other,  or  mixed  with  any  other 
material,  whilst  laid,  placed  or  exposed,  during  any  stage,  process 
or  progress  of  manufacture,  in  any  building,  field  or  other  place, 
shall  be  guilty  of  felony,  and  being  convicted  thereof  shall  be  liable, 
at  the  discretion  of  the  court,  to  be  kept  in  penal  servitude  for  any 
term  not  exceeding  fourteen  years,  and  not  less  than  three  [now  five] 
years,  or  to  be  imprisoned  for  any  term  not  exceeding  two  years,  with 
or  without  hard  labor,  and  with  or  Avithout  solitary  confinement." 

Where  on  an  indictment  under  the  (repealed)  statute  18  Geo.  2,  c. 
27,  for  stealing  yarn  from  a  bleaching  ground,  it  appeared  that  the 
yarn  at  the  time  it  was  stolen  was  in  heaps  for  the  purpose  of  being 
carried  into  the  house,  and  was  not  spread  out  for  bleaching,  Thomp- 
son, B.,  held  that  the  case  was  not  Avithin  the  statute.  R.  v,  Hugill, 
2  Russ.  Cri.  436,  5th  ed.  So  where  the  indictment  was  for  stealing 
ca.lico,  placed  to  be  printed  and  dried  in  a  certain  building,  it  was 
held,  that,  in  order  to  support  the  capital  charge,  it  was  necessary  to 
prove  that  the  building  i'rom  which  the  calico  was  stolen  was  used 
either  for  drying  or  printing  calico.  R.  v.  Dixon,  R.  &  R.  53.  But 
it  is  to  be  observed,  that   the   statute   under  which   this    case   was 


932  MANUFACTURES. 

decided  meutioned  particularly  a  building,  etc.,  made  use  of  by 
any  calico  printer,  etc.,  for  printing,  wiiitening,  booking,  bleaching  or 
dyeing.  It  has  been  decided  that  goods  remain  in  a  "  stage,  process 
or  progress  of  manufacture,"  within  the  meaning  of  the  former  statute, 
the  7  A  8  Geo.  4,  c.  30,  s.  3  (now  repealed),  though  the  texture  be 
complete,  if  they  are  not  yet  brought  iuto  a  condition  for  sale.  K.  v. 
Woodhead,  1  Moo.  &  R.  549. 


MINES.  933 


*MINES.  r*744 

Setting  fire  to  a  coal  mine.  See  24  &  25  Vict.  c.  97,  ss.  26,  27, 
supra,  p.  287. 

Conveying  water  into  a  mine,  obstructing  the  shaft,  etc.  By  the 
24  &  25  Vict.  c.  97,  s.  28,  "  whosoever  shall  unlawfully  and  mali- 
ciously cause  any  water  to  be  conveyed  or  run  into  any  mine,  or  into 
any  subterraneous  passage  communicating  therewith,  with  intent 
thereby  to  destroy  or  damage  such  mine,  or  to  hinder  or  delay  the 
working  thereof,  or  shall  with  the  like  intent  unlawfully  and  mali- 
ciously pull  down,  fill  up  or  obstruct,  or  damage  with  intent  to 
destroy,  obstruct  or  render  useless,  any  airway,  waterway,  drain,  pit, 
level  or  shaft  of  or  belonging  to  any  mine,  shall  be  guilty  of  felony, 
and  being  convicted  thereof  shall  be  liable,  at  the  discretion  of  the 
court,  to  be  kept  in  penal  servitude  for  any  term  not  exceeding  seven 
years  and  not  less  than  three  [now  five]  years,  or  to  be  imprisoned  for 
any  term  not  exceeding  two  years,  with  or  without  hard  labor,  and 
with  or  without  solitary  confinement,  and,  if  a  male  under  the  age  of 
sixteen  years,  with  or  without  whipping  :  provided  that  this  provision 
shall  not  extend  to  any  damage  committed  underground  by  any  owner 
of  any  adjoining  mine  in  working  the  same,  or  by  any  person  duly 
employed  in  such  working," 

Damaging  steam-engines,  staiths,  wagon-ways,  etc.,  for  working 
mines.  By  s.  29,  "  whosoever  shall  unlawfully  and  maliciously  pull 
down  or  destroy  or  damage  with  intent  to  destroy  or  render  useless, 
any  steam-engine  or  other  engine,  for  sinking,  draining,  ventilating 
or  working,  or  for  in  anywise  assisting  in  sinking,  draining,  venti- 
lating or  working  any  mine  or  any  appliance  or  apparatus  in  con- 
nection with  any  such  steam  or  other  engine,  or  any  staith,  building, 
or  erection  used  in  conducting  the  business  of  any  mine,  or  any  bridge, 
wagon-way  or  trunk  for  conveying  minerals  from  any  mine,  whether 
such  engine,  staith,  building,  erection,  bridge,  wagon-way,  or  trunk 
be  completed,  or  in  an  unfinished  state,  or  shall  unlawfully  and  mali- 
ciously stop,  obstruct  or  hinder  the  working  of  any  such  steam  or 
other  engine,  or  of  any  such  appliance  or  apparatus  as  aforesaid,  with 
intent  thereby  to  destroy  or  damage  any  mine,  or  to  hinder,  obstruct 
or  delay  the  working  thereof,  or  shall  unlawfully  and  maliciously 
wholly  or  partially  cut  through,  sever,  break  or  unfasten,  or  damage 
with  intent  to  destroy  or  render  useless  any  rope,  chain,  or  tackle,  of 
whatsoever  material  the  same  shall  be  made,  used  in  any  mine,  or  in 
or  upon  any  inclined  plane,  railway  or  other  way,  or  other  work  what- 
soever, in  anywise  belonging  or  appertaining  to  or  connected  with  or 
employed  in   any  mine   or   the   working  or   business   thereof,  shall 


934  ^  MINES. 

be  guilty  of  felony,  and  being  convicted  thereof,  shall  bo  liable,  at  the 
discretion  of  the  court,  to  be  kept  in  penal  servitude  for  any  term 
not  exceeding  seven  years,  and  not  less  tlian  three  [now  five]  years,  or 
to  be  imprisoned  for  any  term  not  exceeding  two  years,  with  or 
^_,p.-|  *  without  hard  labor,  and  with  or  without  solitary  confinement, 
'^J  and  if  a  male  under  tiie  age  of  sixteen  years,  with  or  without 
whipping." 

As  to  riotously  damaging  machinery  used  in  mines,  see  24  &  25 
Vict.  c.  97,  ss.  11,  12,  infra,  tit.  ''Riot." 

Larceny  ffom  mines.  By  the  24  &  25  Vict.  c.  9G,  s.  38,  "  Avho- 
soever  shall  steal,  or  sever  with  intent  to  steal,  the  ore  of  any  metal  or 
any  lapis  calaminaris,  manganese  or  mundick,  or  any  wad,  black  cawke, 
or  blacklead,  or  any  coal  or  cannel  coal,  from  any  mine,  bed  or  vein 
thereof  respectively,  shall  be  guilty  of  felony,  and  being  convicted 
thereof  shall  be  liable,  at  the  discretion  of  the  court,  to  be  imprisoned 
for  any  term  not  exceeding  two  years,  with  or  without  hard  labor,  and 
with  or  without  solitary  confinement." 

Miners  removing  ore  with  intent  to  defraud.  By  s.  39,  "  who- 
soever, being  employed  in  or  about  any  mine,  shall  take,  remove  or 
conceal  any  ore  of  any  metal,  or  any  lapis  calaminaris,  manganese, 
mundick,  or  other  mineral  found  or  being  in  such  mine,  with  intent 
to  defraud  any  proprietor  of  or  any  adventurer  in  such  mine,  or 
any  workman  or  miner  employed  therein,  shall  be  guilty  of  felony, 
and  being  convicted  thereof  shall  be  liable,  at  the  discretion  of  the 
court,  to  be  imprisoned  for  any  term  not  exceeding  two  years,  with  or 
without  hard  labor,  and  with  or  without  solitary  confinement." 

Venue.  See,  as  to  offences  under  the  24  &  25  Vict.  c.  96,  mpra, 
pp.  643,  692. 

Malice  against  owner  of  property  injured  unnecessarily.     See 

24  &  25  Vict.  c.  97,  s.  58,  mpra,  p.  289. 

Persons  in  possession  of  property  injured  liable  to  be  convicted. 
See  24  &  25  Vict.  c.  97,  s.  59,  supra,  p,  289. 

Porm  of  indictment  for  injury.  See  24  &  25  Vict.  c.  97,  s.  60, 
supra,  p.  289.  In  an  indictment  under  this  section  the  mine  may  be 
laid  as  the  property  of  the  person  in  possession  and  working  it,  though 
only  an  agent  for  others.     R.  v.  Jones,  2  Moo.  C.  C.  293. 

Proof  of  injury  to  mine.  The  provisions  of  24  &  25  Vict.  c.  97, 
ss.  28,  29,  do  not  render  a  person  criminally  liable  for  acts  causing 
such  damage,  but  done  in  bond  fide  exercise  of  a  supposed  right,  and 
without  a  wicked  mind.  R.  v.  Matthews,  14  Cox,  C.  C.  5.  AVhere  A. 
and  B.  were  the  owners  of  adjoining  collieries,  and  A.,  asserting  that 


MINES. 


935 


a  certain  airway  belonged  to  him,  directed  his  workmen  to  stop  it  up, 
and  they  acting  6ondyid6,  and  believing  that  A  had  a  right  to  give 
such  an  order,"did  so.  Lord  Abinger,  C.  B  held  they^ere  no  guilty 
of  felony  under  the  above  section.  R.  v.  James,  8  C.  &  ^-/^^^  f^ 
E  C  L  But  if  such  workmen  knew  that  the  stopping  up  ol  the  air- 
way was  a  malicious  act  of  their  master,  such  workmen  would  be 
guilty  of  felony.     Id. 


936  MURDER, 


*746] 


MTTEDER, 


PAGB 

Punishment .•*.*.  747 

Sentence  for  murder •        .        .  747 

Body  to  be  buried  in  prison 747 

Conspiring  or  soliciting  to  commit  murder         ,        .        .        .        .  747 

Form  of  indictment •        .        .  747 

Petit  treason  abolished 747 

Venue  in  cases  of  murder,  etc.,  committed  abroad        ....  747 

Child  murder 747 

Punishment  of  accessory  after  the  fact  of  murder        ....  747 

Proof  of  a  murder  having  been  committed 748 

of  the  murder — party  killed 749 

that  the  prisoner  was  the  party  killing 751 

of  the  means  of  killing        ....*...  754 

variance  in  statement 760 

Proof  of  malice — in  general 760 

Death  ensuing  in  the  performance  of  an  unlawful  or  wanton 

act 761 

Wilful  neglect  of  duty 763 

Neglect  or  ill-treatment  of  infants,  and  others   .        .        .  764 

Death  caused  by  negligence 768 

Correction  of  child  by  parents  and  others    ....  769 

Dangerous  assaults 769 

Provocation  in  general 770 

By  words  or  gestures  only        ,..•.*  770 

By  assault 772 

Where  an  instrument  is  used 774 

By  third  parties  ........  776 

Must  be  recent 777 

Drunkenness         ....*...  782 

Express  malice 783 

Cases  of  mutual  combat 784 

Duelling ...  787 

Peace  officers  and  private  persons  killed  or  killing  others  in  appre- 
hending them 789 

Peace  officer  killed  or  killing  others  in  apprehending  them      •        .  789 

When  the  peace  officer  is  protected 789 

Regularity  of  process ,        .  791 

Notice  of  their  authority 795 

Mode  of  executing  their  duty 796 

Mode  (where  an  officer  has  been  killed)  in  which  that  killing 

has  been  effi^cted     .        , 800 

Impressment  of  seamen ,        .        .        .  802 

Killing  in  defence  of  property ,  804 

Proof  in  cases  of  felo  de  se 806 

Accessories 808 

^- .^-|        *Punishment.     By  the  24  &  25  Yict.  c.  100,  s.  1,  "whoso- 
J  ever  shall  be  convicted  of  murder,  shall  suffer  death  as   a 
felon." 

Sentence  for  murder.  By  s.  2,  "  upon  every  conviction  for  murder 
the  court  shall  pronounce  sentence  of  death,  and  the  same  may  be  car- 
ried into  execution,  and  all  other  proceedings  upon  such  sentence  and 
in  respect  thereof  may  be  had  and  taken,  in  the  same  manner  in  all 
respects  as  sentence  of  death  might  have  been  pronounced  and  carried 
into  execution,  and  all  other  proceedings  thereupon,  and  in  respect 


MURDER.  937 

thereof  might  have  been  had  and  taken,  before  the  passing  of  this 
Act,  upon  a  conviction  for  any  other  felony  for  which  the  prisoner 
might  have  been  sentenced  to  suffer  death  as  a  felon." 

Body  to  be  buried  in  prison.  By  s.  3,  "  the  body  of  every  person 
executed  for  murder  shall  be  buried  within  the  precincts  of  the  prison 
in  which  he  shall  have  been  last  confined  after  conviction,  and  the 
sentence  of  the  court  shall  so  direct." 

Conspiring  or  soliciting  to  commit  murder.  See  24  &  25  Vict.  c. 
100,  s.  4,  supra,  p.  43G. 

Form  of  indictment.  By  the  24  &  25  Vict.  c.  100,  s.  6,  "in  any 
indictment  for  murder  or  manslaughter,  or  for  being  an  accessory  to 
any  murder  or  manslaughter,  it  shall  not  be  necessary  to  set  forth  the 
manner  in  which,  or  the  means  by  which,  the  death  of  the  deceased 
was  caused,  but  it  shall  be  sufficient  in  any  indictment  for  murder  to 
charge  that  the  defendant  did  feloniously,  wilfully,  and  of  his  malice 
aforethought  kill  and  murder  the  deceased  ;  and  it  shall  be  sufficient 
in  any  indictment  for  manslaughter  to  charge  that  the  defendant  did 
feloniously  kill  and  slay  the  deceased ;  and  it  shall  be  sufficient  in  any 
indictment  against  any  accessory  to  any  murder  or  manslaughter  to 
charge  the  principal  with  the  murder  or  manslaughter  (as  the  case  may 
be)  in  the  manner  hereinbefore  specified,  and  then  to  charge  the 
defendant  as  an  accessory  in  the  manner  heretofore  used  and  accus- 
tomed."^ 

Petit  treason  abolished.  By  s.  8,  "every  offence  which  before  the 
commencement  of  the  Act  of  the  ninth  year  of  King  George  the 
Fourth,  chapter  thirty-one,  would  have  amounted  to  petit  treason, 
shall  be  deemed  to  be  murder  only,  and  no  greater  offence ;  and  all 
persons  guilty  in  respect  thereof,  whether  as  principals  or  as  accesso- 
ries, shall  be  dealt  with,  indicted,  tried,  and  punished  as  principals  and 
accessories  in  murder." 

Venue  in  case  of  murder  committed  abroad.  See  24  &  25  Vict. 
e.  100,  s.  9,  ante,  p.  258. 

Child  murder.  By  s.  60,  "if  any  person  tried  for  the  murder  of 
any  child  shall  be  acquitted  thereof,  it  shall  be  lawful  for  the  jury,  by 
whose  verdict  such  person  shall  be  acquitted,  to  find  in  case  it  shall  so 
appear  in  evidence,  that  the  child  had  recently  been  born,  and  that 
such  person  did  by  some  secret  disposition  of  the  dead  body  of  such 
child,  endeavor  to  conceal  the  birth  thereof,  and  thereupon  the  court 
may  pass  such  sentence  as  if  such  person  had  been  convicted  upon  an 
indictment  for  concealment  of  the  birth."     See  p.  400. 

Punishment  of  accessory  after  the  fact  to  murder.     By  s.  67, 

^  An  indictment  for  murder  is  defective,  which  does  not  allege  that  the  prisoner 
"killed  "  the  deceased.    Pierce  v.  State,  21  Tex.  A  pp.  669. 


938  MURDEE. 

*7zi«l  "every  *accessory  after  the  fact  to  murder  shall  be  liable,  at 
J  the  discretion  of  the  court,  to  be  kept  in  penal  servitude  for 
life,  or  for  any  term  not  less  than  three  [now  five]  years,  or  to  be 
imprisoned  for  any  term  not  exceeding  two  years,  with  or  without  hard 
labor." 

Proof  of  a  murder  having  been  committed.  The  corpus  delicti, 
that  a  murder  had  been  committed  by  some  one,  is  essentially  neces- 
sary to  be  proved ;  and  Lord  Hale  advises  that  in  no  case  should 
a  prisoner  be  convicted,  where  the  dead  body  has  not  been  found — 
where  the  fact  of  murder  depends  upon  the  fact  of  disappearance, 
ante,  p.  16.^ 

A  girl  was  indicted  for  the  murder  of  her  child,  aged  sixteen  days. 
She  was  proceeding  from  Bristol  to  Llandogo,  and  she  was  seen 
near  Tintern  with  the  child  in  her  arms,  at  six  o'clock  in  the  even- 
ing ;  she  arrived  at  Llandogo  between  eight  and  nine  without  the 
child.  The  body  of  a  child  was  afterwards  found  in  the  Wye,  near 
Tintern,  which  appeared  not  to  be  the  child  of  the  prisoner.  Lord 
Abinger,  C.  B.,  held  that  the  prisoner  must  be  acquitted,  and  that 
she  could  not  by  law  either  be  called  upon  to  account  for  her  child, 
or  to  say  where  it  was,  unless  there  was  evidence  to  show  that  her 
child  was  actually  dead.     R.  v.  Hopkins,  8  C.  &  P.  591,  34  E.  C.  L. 

Where  the  death  has  been  occasioned  in  secrecy,  says  Mr.  Starkie, 
a  very  important  preliminary  question  arises  whether  it  has  not  re- 
sulted from  accident,  or  from  the  act  of  the  party  himself.  It  some- 
times happens  that  a  person  determined  on  self-destruction,  resorts  to 
expedients  to  conceal  his  guilt,  in  order  to  save  his  memory  from  dis- 
honor, and  his  property  from  forfeiture.  Instances  also  have  occurred 
where,  in  doubtful  cases,  the  surviving  relations  have  used  great  exer- 
tions to  rescue  the  character  of  the  deceased  from  ignominy  by  sub- 
stantiating a  charge  of  murder.  R.  v.  Cowper,  13  How.  St.  Tr.  1106. 
On  the  other  liand,  in  frequent  instances,  attempts  have  been  made  by 
those  who  have  really  been  guilty  of  murder,  to  perpetrate  it  in  such 
a  manner  as  to  induce  a  belief  that  the  party  was  felo  de  se.  AVhere 
the  circumstances  are  natural  and  real,  and  have  not  been  counterfeited 
with  a  view  to  evidence,  they  must  necessarily  correspond  and  agree 
with  each  other,  for  they  did  really  so  co-exist ;  and  therefore  if  any 
one  circumstance,  which  is  essential  to  the  case  attempted  to  be  estab- 
lished, be  wholly  inconsistent  and  irreconcilable  with  such  other  cir- 
cumstances as  are  known  or  admitted  to  be  true,  a  plain  and  certain 
inference  results  that  fraud  and  artifice  have  been  resorted  to,  and  that 

» Tyner  ii.  State,  5  Humph.  383.  [People  v.  Hall,  48  Mich.  482.]  It  is  not  essential 
to  a  conviction  for  murder  that  the  body  of  the  deceased  be  found.  Stocking  v.  State, 
7  Ind.  326  ;  People  v.  Ruloff,  3  Parker,  C.  E.  401 ;  Kuloff  v.  People,  4  Smith,  179 ; 
State  V.  William,  7  Jones's  Law,  446.  In  murder,  the  body  of  the  deceased  must  be 
identified.     Smith  v.  State,  21  Gratt.  809.     S. 

This  may  be  done  by  proof  of  occupation,  as  well  as  by  proof  of  Christian  names. 
Shepherd  v.  State,  72  111.  480.  As  to  the  identification  of  a  skeleton.  Wilson  v. 
State,  43  Tex.  472.  The  defendant's  unsupported  confession  is  not  sufficient  evi- 
dence of  the  corpus  ddiclL  People  v.  Lane,  49  Mich.  340.  But  see  State  v.  Patterson, 
73  Mo.  695.    South  v.  People,  98  111.  261 ;  State  v.  German,  54  Mo.  526. 


MURDER.  939 

the  hvpotliesis  to  which  such  a  circumstance  is  essential  cannot  be  true. 
2  Stark.  Ev.  521,  2nd  ed. 

The  question,  observes  Mr.  Starkie,  whether  a  person  has  died  a 
natural  death,  as  from  apoplexy,  or  a  violent  one,  as  from  strangu- 
lation, whether  the  death  of  a  person  found  immersed  in  water,  has 
been  occasioned  by  drowning,  or  by  force  and  violence  previous  to  the 
immersion  (see  R.  V.  Co wper,  13  How.  St.  Tr.  1106),  whether  the 
drowning  was  voluntary  or  the  result  of  force,  whether  the  wounds 
inflicted  on  the  body  were  inflicted  before  or  after  death,  are  questions 
to  be  decided  by  medical  skill.^  It  is  scarcely  necessary  to  remark, 
that  where  a  reasonable  doubt  arises  whether  the  death  resulted,  on  the 
one  hand,  from  natural  or  accidental  causes,  or,  on  the  other,  from 
the  deliberate  and  wicked  act  of  the  prisoner,  it  would  be  unsafe  to 
convict  him,  notwithstanding  strong,  but  merely  circumstantial,  evi- 
dence against  him.  Even  medical  skill  is  not  in  many  instances, 
and  without  reference  to  the  particular  circumstances  of  the  case 
♦decisive  as  to  the  cause  of  the  death  ;  and  persons  of  science  r^^^q 
must,  in  order  to  form  their  own  conclusion  and  opinion,  rely  ■- 
partly  on  external  circumstances.  It  is,  therefore,  in  all  cases  expe- 
dient that  all  the  accompanying  facts  should  be  observed  and  noted 
with  the  greatest  accuracy ;  such  as  the  position  of  the  body,  the  state 
of  the  dress,  marks  of  blood,  or  other  indications  of  violence :  and  in 
cases  of  strangulation,  the  situation  of  the  rope,  the  position  of  the 
knot ;  and  also  the  situation  of  any  instrument  of  violence,  or  of  any 
object  by  wliich,  considering  the  position  and  state  of  the  body,  and 
other  circumstances,  it  is  possible  that  the  death  may  have  been  acci- 
dentally occasioned.'^     2  Stark.  Ev.  521,  2nd  ed. 

Proof  of  the  murder — as  to  the  party  killed.  A  child  in  the 
womb  is  considered  pars  viscerum  matris,  and  not  possessing  an  indi- 
vidual existence,  and  cannot  therefore  be  the  subject  of  murder.  Thus, 
if  a  woman,  quick  or  great  with  child,  take  a  potion  to  procure  abor- 
tion, or  if  another  give  her  such  potion,  or  strike  her,  whereby  the 
child  within  her  is  killed,  it  is   neither  murder  nor  manslaughter.     1 

'  The  presumption  of  law  that  a  person  fonnd  dead  has  not  committed  suicide  does 
not  apply  to  the  case  of  an  insane  person,  (ierraain  v.  Brooklyn  Life  Ins.  Co.,  26 
Hun,  (N.  Y.)  604.  It  is  error  for  the  court  to  instruct  the  jury  barely,  that  a  tend- 
ency to  commit  suicide  does  not  prove  insanity.  If  properly  qualified  it  may  be  un- 
objectionable. People  V.  Messersmith,  61  Cal.  246.  Where  on  a  trial  for  murder  the 
defence  is  that  the  deceased  committed  suicide,  evidence  may  be  given  of  the  melan- 
choly disposition  and  threats  to  commit  suicide  made  by  her  even  six  years  before. 
The  remoteness  of  tlie  period  goes  merely  to  the  weight  and  not  to  the  competency  of 
the  testimony.     Blackburn  v.  State,  23  Ohio  St.  146. 

^  When  death  is  caused  by  a  wound  received,  the  person  who  inflicts  it  is  responsi- 
ble for  its  consequences,  though  the  deceased  might  have  recovered  by  the  exercise  of 
more  care  and  prudence.  McCallister  v.  State,  17  Ala.  434.  When  a  surgical  opera- 
tion is  performed  in  a  proper  manner,  and  under  circumstances  which  render  it  neces- 
sary in  the  opinion  of  competent  surgeons,  upon  one  who  has  received  a  wound  appar- 
ently mortal,  and  such  operation  is  ineffectual  to  allord  relief  and  save  the  life  of  the 
patient,  or  is  itself  the  immediate  cause  of  death,  the  party  inflicting  the  wound  will 
nevertlieless  be  responsible  for  the  consequences.  Commonwealth  v.  McPike,  3  Cush. 
181.     S. 


940  MURDER. 

Hale,  P.  C.  433.  Whether  or  not  a  child  was  born  alive,  is  a  proper 
question  for  the  opinion  of  medical  men.  Where  a  woman  was  in- 
dicted for  the  wilful  murder  of  her  child,  and  the  opinion  of  the 
medical  men  was  that  it  had  breathed,  but  they  could  not  take  upon 
themselves  to  say  whether  it  was  wholly  born  alive,  as  breathing  may 
take  place  before  the  whole  delivery  is  completed,  Littledale,  J.,  said, 
that,  with  respect  to  the  birth,  the  being  born  must  mean  that  the 
whole  body  is  brought  into  the  world,  and  that  it  is  not  sufficient  that 
the  child  respire  in  the  progress  of  its  birth.  R.  v.  Poulton,  5  C.  &  P. 
329,  24  E.  C.  L.  The  authority  of  this  decision  was  recognized  by 
Park,  J.,  in  R.  v.  Brain,  where  he  said,  "a  child  must  be  actually 
wholly  in  the  world,  in  a  living  state,  to  be  the  subject  of  a  charge  of 
murder ;  but  if  it  has  been  wholly  born,  and  is  alive,  it  is  not  essen- 
tial that  it  should  have  breathed  at  the  time  it  was  killed,  as  many 
children  are  born  alive  and  yet  do  not  breathe  for  some  time  after 
their  birth.  But  the  jury  must  be  satisfied  that  the  child  was  wholly 
born  into  the  world  before  it  was  killed,  or  they  cannot  find  the  pris- 
oner guilty  of  murder;"  and  he  cited  R.  v.  Poulton  (supra);  R.  v. 
Brain,  6  C.  &  P.  349,  25  E.  C.  L.  In  another  case,  Mr.  Justice 
James  Parke  ruled  the  same  way,  saying  that  a  child  might  breathe 
before  it  was  born,  but  that  its  having  breathed  was  not  sufficient  to 
make  the  killing  murder,  and  that  there  must  have  been  an  indepen- 
dent circulation  in  the  child,  or  that  it  could  not  be  considered  as  alive 
for  this  purpose.  R.  v.  Pulley,  5  C.  &  P.  539,  24  E.  C.  L.  See  also 
R.  V.  Wright,  9  C.  &  P.  754,  38  E.  C.  L.  So  Avhere  the  prisoner  was 
charged  with  the  murder  of  her  new-born  child,  by  cutting  off  its 
head,  Coltman,  J.,  held  that  in  order  to  justify  a  conviction  for  mur- 
der, the  jury  must  be  satisfied  that  the  entire  child  was  actually  born 
into  the  world  in  a  living  state,  and  that  the  fact  of  its  having  breathed 
was  not  a  decisive  proof  that  it  was  born  alive,  as  it  might  have 
breathed  and  yet  died  before  birth.  R.  v.  Sellis,  7  C.  &  P.  850,  32 
E.  C  L.  Where  an  indictment  charged,  that  the  prisoner  being  big 
with  child,  did  bring  forth  the  child  alive,  and  afterwards  strangled 
it :  Parke,  B.,  held,  that  in  order  to  convict  upon  an  indictment  so 
framed,  the  jury  must  be  satisfied  that  the  whole  bod}^  of  the  child 
had  come  forth  from  the  body  of  the  mother  when  the  ligature  was 
applied.  The  learned  baron  added,  that  if  the  jury  should  be  of 
*7^C\'\  opiuion  that  *the  child  was  strangled  intentionally,  while  it 
-•  was  connected  with  the  umbilical  cord  to  the  mother,  and  after 
it  was  wholly  produced,  he  should  direct  them  to  convict  the  prisoner, 
and  reserve  the  point,  his  impression  being  that  it  would  be  murder  if 
those  were  the  facts  of  the  case.  The  prisoner  was  acquitted.  R.  v. 
Crutchley,  7  C.  &  P.  814,  32  E.  C.  L.  See  R.  v.  Senior,  post;  also 
R.  V.  Reeves,  9  Carr.  &  P.  25,  38  E.  C.  L.  In  R.  v.  Trilloes,  2  Moo. 
C.  C.  260,  it  was  held  that  murder  may  be  committed  on  a  child  still 
attached  to  the  mother  by  the  navel  string. 

It  is  said  by  Lord  Hale,  that  if  the  child  be  born  alive,  and  after- 
wards die  in  consequence  of  the  blows  given  to  the  mother,  this  is 
not  homicide.     1  Hale,  P.  C.  433.     And  see  5  Taunt.  21,  1  E.  C.  L. 


MURDER.  941 

But  Lord  Coke,  on  the  contrary,  says,  that  if  the  child  be  born 
alive,  and  die  of  the  potion,  battery,  or  other  cause,  this  is  murder. 
3  Inst.  50.  The  latter  is  generally  regarded  as  the  better  opinion, 
and  has  been  followed  by  modern  text  writers.  Hawk.  P.  C.  b.  1,  c.  31, 
s.  16  ;  4  Bl.  Com.  198;  1  Buss.  Cri.  646,  5th  ed.  See  5  C.  &  P. 
641  (n),  24  E.  C.  L.  And  in  conformity  with  the  same  opinion,  the 
case  of  R.  V.  Senior,  1  Moo.  C.  C.  346,  was  decided.  See  ante,  p. 
734. 

A\^here  the  indictment  was  for  the  murder  of  "  a  certain  female 
child,  whose  name  was  to  the  jurors  unknown,"  and  it  appeared  that 
the  child  was  twelve  days  old,  and  that  the  child's  mother  had  said 
she  should  like  to  have  it  called  "  Mary  Anne,"  and  on  two  occasions 
had  called  it  by  that  name;  the  prisoner  having  been  convicted,  the 
judges  held  the  conviction  right.  R.  v.  Smith,  6  C.  &  P.  151,  25 
E.  C.  L.  Where  the  deceased  was  described  as  "  George  Lakeman 
Clark,"  and  it  was  proved,  that  being  a  bastard  child,  he  had  been  bap- 
tized "  George  Lakeman  "  (the  name  of  his  reputed  father),  and  there 
was  no  evidence  that  he  had  obtained,  or  was  called  by  the  mother's 
name  of  Clark,  the  variance  was  held  fatal.  R.  v.  Clark,  Russ.  &  Ry. 
358.  With  regard  to  what  is  sufficient  evidence  of  a  child  being 
known  by  a  certain  name,  it  was  said  by  Burrough,  J.,  "  It  is  proved 
by  one  of  the  witnesses  that  she  should  have  known  him  by  that 
name.  It  cannot  be  necessary  that  all  the  world  should  know  him  by 
that  name,  because  children  of  so  tender  an  age  are  hardly  known  at 
all,  and  are  generally  called  by  a  Christian  name  only."  R.  v.  Sheen, 
2  C.  &  P.  639,  12  E.  C.  L.  The  prisoner  was  charged  with  the 
murder  of  Eliza  Waters,  and  it  appeared  that  the  deceased  (who  was 
about  ten  days  old)  was  her  illegitimate  child,  and  the  only  evidence 
given  of  the  name  was  by  a  witness,  who  stated,  "  the  child  was  called 
Eliza.  I  took  it  to  be  baptized,  and  said  it  was  Eleanor  Waters'  child." 
It  being  objected  that  there  was  no  evidence  of  the  child's  surname  of 
Waters,  Lord  Denman,  C.  J.,  reserved  the  point,  and  the  prisoner,  who 
had  been  convicted,  was  afterwards  pardoned.  R.  v.  Waters,  7  C.  &  P. 
250,  32  E.  C.  L.  An  illegitimate  child,  six  weeks  old,  was  baptized 
on  a  Sunday  and  from  that  day  to  the  following  Tuesday  it  was  called 
by  its  name  of  baptism  and  its  mother's  surname.  Erskine,  J.  (after 
consulting  Patteson,  J.)  held,  that  the  evidence  was  quite  sufficient  to 
warrant  the  jury  in  finding  that  the  deceased  was  properly  described 
by  those  names  in  the  indictment,  which  was  for  murder.  R.  v.  Evans, 
8  C.  &  P.  765,  34  E.  C.  L.  Where  an  indictment  against  a  married 
woman  for  the  murder  of  her  illegitimate  child,  stated  that  she,  "  in 
and  upon  a  certain  infant  male  child  of  tender  age,  to  wit,  of  the  age 
of  six  weeks,  and  not  baptized,  feloniously  and  Avilfully,"  etc.,  did 
make  an  assault,  etc.  It  was  objected  that  the  child  being  born  in 
*  wedlock,  ought  to  have  been  described  by  the  surname  of  the  r^ne:-i 
father,  or,  at  least,  to  have  been  described  as  a  certain  child  to  L 
the  jurors  unknown.  The  point  being  reserved  for  the  consideration 
of  the  judges,  they  unanimously  held,  that  the  deceased  was  insuf- 
ficiently described.     R.  v.  Biss,  8  C.  &  P.  773,  34  E.  C.  L.;    2  Moo. 


942  MURDER. 

C.  C.  93.  An  indictment  for  the  murder  of  a  bastard  child,  described 
as  Harriet  Stroud,  is  not  sustained  by  proof  of  a  child  christened 
Harriet,  and  only  called  by  that  name,  though  the  mother's  name  was 
Stroud.  The  proper  description  is  Harriet.  A  child,  "  whose  name 
is  to  the  jurors  unknown,"  is  not  "good,"  because  the  name  of  Harriet 
was  known.  R.  v.  Stroud,  2  Moo.  C.  C.  270  ;  I  Q.  &  K.  187,  47  E. 
C  L.  See  R.  v.  Hick,  2  JNIoo.  &  R.  302.  But  where  the  prisoners 
were  indicted  for  the  murder  "of  a  certain  illegitimate  male  cliikl,  then 
late  before  born  of  the  body  of  the  said  J.  H.,"  and  the  fact  as  proved 
in  evidence  was,  that  the  child  had  been  destroyed  by  tiie  prisoners  al- 
most instantly  after  its  birth  ;  Lord  Denman,  C.  J.,  held,  that  the  de- 
scription was  sufficient,  observing  tliat  this  was  not  the  case  of  a  party 
whose  name  was  unknown,  but  of  one  who  had  never  acquired  a  name, 
and  the  indictment  identified  the  party  by  showing  the  name  of  its 
parent.  R.  v.  Hogg,  2  Moo.  &  R.  380.  This  ruling  was  confirmed 
by  the  case  of  R.  v.  Willis,  1  Den.  C.  C.  R.  80.  Where  a  prosecutor 
has  been  baptized  by  one  Christian  name,  and  confirmed  by  a  different 
one,  and  has  not  acquired  the  former  by  common  reputation,  a  de- 
scription of  him  in  an  indictment  by  such  baptismal  name  is  erroneous. 
R.  V.  Smith,  1  Cox,  C.  C.  248.  Where  the  indictment  charged  the 
prisoner  with  the  murder  of  "a  female  bastard  child,"  it  was  held  that 
proof  of  its  being  illegitimate  lay  upon  the  prosecutor,  but  that  evi- 
dence of  the  prisoner  having  told  a  person,  that  she  had  only  told  of 
her  being  with  child  to  the  father  of  it,  who  had  lately  got  married, 
was  sufficient  evidence  to  suj)port  the  allegation.  R.  v.  Poulton,  5  C. 
&  P.  329,  24  E.  C.  L. 

As  to  the  power  of  the  court  to  amend  for  a  variance  between 
the  indictment  and  the  evidence,  see  14  &  15  Vict.  c.  100,  s.  1,  antej 
p.  192. 

Proof  that  the  prisoner  was  the  party  killing.  When  it  has  been 
clearly  established,  says  Mr.  Starkie,  that  the  crime  of  wilful  murder 
has  been  perpetrated,  the  important  fact,  whether  the  prisoner  was  the 
guilty  agent,  is,  of  course,  for  the  consideration  of  the  jury,  under  all 
the  circumstances  of  the  case.  Circimistantial  evidence  in  this,  as  in 
other  criminal  cases,  relates  principally, — 1st,  To  the  probable  motive 
which  might  have  urged  the  prisoner  to  commit  so  heinous  a  crime  :^ 

'Thus the  State  may  show  in  evidence  that  there  has  been  a  previous  altercation 
between  the  deceased  and  the  defendant.  Thompson  r.  State,  55  Ga.  47.  Threats  of 
defendant  against  deceased  are  admissible  witliout  limit  as  to  time.  United  States  v. 
Neverson,  1  .Alackey  (D.  C.)  152;  Redd  ?\  State,  68  Ala.  492.  (But  these  tlireats  must 
be  personal,  not  merely  against  a  certain  class  or  race.  Id.)  State  r.  Edwards,  84 
La.  An.  1012;  State  v.  Adams,  76  Mo.  355;  Schoolcraft  v.  People,  117  111.  271.  So 
also  evidence  of  a  feud  or  old  grudge.  Coxwell  r.  State,  66  Ga.  309.  Both  in  chief 
and  in  rebuttal.  State  v.  TalboU,  73  Mo.  347 ;  State  r.  Brown,  63  Mo.  439.  Con- 
versations of  the  defendant  proposing  to  commit  a  robborv  on  the  deceased  are  ad- 
missible. Stafford  r.  State,  55  Ga.  591.  Wliatever  tends  to  sliow  defendant's  feeling 
towards  the  pei-son  killed  is  admissible.  People  i\  Kern,  61  Cal.  244  ;  Marler  v.  State, 
67  Ala.  55;  Powell  7-.  State,  13  Tex.  App.  244  ;  State  v.  Gooch,  94  N.  C.  987.  But 
there  must  be  something  to  connect  the  fact  with  defendant.  Evidence  of  a  criminal 
intimacy  between  deceased  and  defendant's  wife  not  brnuglit  to  prisoners  knowledge 
before  the  killing  is  inadmissible.     Polin  c.  State,  14  Neb.  540 ;   Gardner  v.  State,  11 


MUEDER.  943 

for,  however  strongly  other  circumstances  may  weigh  against  the 
prisoner,  it  is  but  reasonable,  in  a  case  of  doubt,  to  expect  that  some 
motive,  and  that  a  strong  one,  should  be  assigned  as  his  induce- 
ment to  commit  an  act  from  which  our  nature  is  abhorrent,  and 
the  consequence  of  which  is  usually  so  fatal  to  the  criminal.  2ndly, 
The  means  and  opportunity  which  he  possessed  for  perpetrating  the 
oifence.^  Srdly,  His  conduct  in  seeking  for  opportunities  to  commit 
the  offence,  or  in  afterwards  using  means  and  precautions  to  avert 
suspicion  and  inquiry,  and  to  remove  material  evidence.^  The  case 
cited  by  Lord  Coke  and  Lord  Hale,  and  which  has  already  been  ad- 
verted to,  is  a  melancholy  instance  to  show  how  cautiously  proof 
arising  by  inference  from  the  conduct  of  the  accused  is  to  be  received, 
where  it  is  not  satisfactorily  proved  by  other  circumstances,  that  a 
*murder  has  been  committed;  and  even  where  satisfactory  r^^po 
proof  has  been  given  of  the  death,  it  is  still  to  be  recollected  L 
that  a  weak,  inexperienced,  and  injudicious  person,  ignorant  of  the 
nature  of  evidence,  and  unconscious  that  the  truth  and  sincerity  of  in- 
nocence will  be  his  best  and  surest  protection,  and  how  greatly  fraud 
and  artifice,  when  detected,  may  operate  to  his  prejudice,  will  often,  in 
the  hope  of  present  relief,  have  recourse  to  deceit  and  misrepresen- 
tation. 4thly,  Circumstances  which  are  peculiar  to  the  nature  of  the 
crime,  such  as  the  possession  of  poison,  or  of  an  instrument  of  vio- 
lence, corresponding  with  that  which  has  been  used  to  perpetrate  the 

Tex.  App.  265  ;  Commonwealth  v.  Abbott,  130  Mass.  472.  Where  the  theory  of  the 
State  is  that  the  murder  was  committed  to  enable  the  prisoner  to  get  his  brother's 
property,  evidence  of  their  business  and  social  relations  for  a  reasonable  time  before 
IS  admissible.  Clough  t-.  State,  7  Neb.  320 ;  Murphy  v.  People,  63  N.  Y.  590.  Where 
the  State  has  shown  a  litigation  between  the  deceased  and  the  accused,  the  latter  can- 
not enter  into  the  merit  of  the  suit  in  rebuttal.  Commander  v.  State,  60  Ala.  1.  All 
testimony  tending  to  show  motive  is  material  to  the  issue.  Fraser  v.  State,  55  Ga. 
325 ;  McCue  v.  Commonwealth,  78  Pa.  St.  185.  On  secret  associations  and  their  mo- 
tives. See  Carroll  v.  Commonwealth,  84  Pa.  St.  107  ;  Campbell  v.  Commonwealth, 
Id.  187  ;  Hester  v.  Commonwealth,  85  Pa.  St.  139  ;  McManus  v.  Commonwealth,  91 
Pa.  St.  57  ;  Jones  v.  State,  4  Tex.  App.  436.  That  the  murdered  wife  has  applied  for 
a  divorce  is  admissible,  but  not  the  allegations  supporting  the  application.  Pinck- 
ford  V.  State,  13  Texas  App.  468.  See  Billingslea  v.  State,  68  Ala.  486  ;  Binns  i'.  State, 
57  Ind.  46.  So  also  that  defendant  is  paramour  to  a  woman  whom  deceased  assaulted 
in  defendant's  presence.  State  v.  Lawlor,  28  Min.  216.  That  there  has  been  an  in- 
dictment found  against  defendant's  brother  for  theft  from  deceased.  Coward  v.  State, 
6  Tex.  App.  59.  Evidence  that  defendant  knew  that  there  was  money  on  the  prem- 
ises where  defendant  lived,  is  admissible  when  the  money  has  been  stolen.  Ettinger 
V.  Commonwealth,  98  Pa.  St.  338. 

^  The  sayings  and  admissions  of  a  defendant  are  admissible  whenever  they  concern 
a  matter  material  to  the  issue,  e.  g.,  the  capacity  of  the  horse  he  is  said  to  have  been 
riding.  Fraser  v.  State,  55  Ga.  325  ;  Clough  v.  State,  7  Neb.  320 ;  Shaw  v.  State,  60 
Ga.  246.  And  where  one  person  is  killed  in  mistake  for  another,  the  mistaken  identity 
being  established,  malice  and  threats  of  the  defendant  towards  the  person  he  supposed 
he  was  assaulting  may  be  shown,  or  any  quarrel  between  them,  but  defendant  cannot 
explain  the  difficulty.    Clark  v.  State,  78  Ala.  474. 

*  State  V.  Sanders,  76  Mo.  35.  Flight  or  concealment  is  not  conclusive  evidence  that 
a  homicide  is  felonious.  Waybright  v.  State,  56  Ind.  122.  In  connection  with  other 
evidence  it  may  sustain  a  verdict.  Williams  v.  State,  3  Tex.  App.  1 23.  Evidence  is 
admissible  on  the  trial  of  a  man  for  the  murder  of  his  wife,  that  he  manifested  no 
concern  at  her  death.  Greenfield  v.  State,  85  N.  Y.  75.  Or  that  he  is  criminally  in- 
timate with  another  woman.    St.  Louis  v.  State,  8  Neb.  405. 


944  MURDER. 

crime,  stains  of  blood  upon  tlie  dress,  or  other  indications  of  violence. 
2  Stark.  Ev.  521,  2nd  ed.*  On  a  trial  for  murder,  where  the  case 
against  the  prisoner  was  made  up  entirely  of  circumstances,  Alderson, 
B.,  told  the  jury,  that  before  they  could  find  the  prisoner  guilty,  they 
must  be  satisfied  "not  only  that  those  circumstances  were  consistent 
with  his  having  committed  the  act,  but  they  must  also  be  satisfied  that 
the  facts  were  such  as  to  be  inconsistent  with  any  other  rational  con- 
clusion than  that  the  prisoner  was  the  guilty  party."  E..  v.  Hodge,  2 
Lew.  C.  C.  227.=' 

In  order  to  convict  the  prisoner  of  murder  it  is  not  necessary  to 
prove  that  the  fatal  blow  was  given  by  his  hand.^  If  he  was  present, 
aiding  and  abetting  the  fact  committed,  he  is  a  principal  in  the  felony. 
The  presence  need  not  always  be  an  actual  immediate  standing  by, 
within  sight  or  hearing  of  the  fact.  4  Bl.  Com.  34.  Thus,  if  several 
persons  set  out  together,  or  in  small  parties,  upon  one  common  design, 
be  it  murder  or  other  felony,  or  for  any  other  purpose  unlawful  in 
itself,  and  each  takes  the  part  assigned  him,  some  to  commit  the  fact, 
others  to  watch  at  proper  distances  and  stations  to  prevent  a  surprise, 
or  to  favor,  if  need  be,  the  escape  of  those  who  are  more  immediately 
engaged,  they  are  all,  if  the  fact  be  committed,  in  the  eye  of  the  law, 
present  at  it.  Foster,  350.  But  in  order  to  render  a  party  principal 
in  the  felony,  he  must  be  aiding  or  abetting  at  the  fact,  or  ready  to 
aiford  assistance  if  necessary.     Therefore  if  A.  happens  to  be  present 

^Nichols  V.  Commonwealth,  11  Bush,  (Ky.)  575.  The  instrument  with  which  it  is 
alleged  the  crime  was  committed  is  always  admissible  in  evidence.  Thomas  v.  State, 
67  Ga.  460. 

'  It  is  error  for  the  court  to  refuse  to  instruct  the  jury  that  "the  burden  of  proof  to 
show  the  truth  of  a  charge  of  murder  is  at  all  times  on  the  State."  Black  v.  State,  1 
Tex.  App.  368.  As  to  what  circumstantial  evidence  is  insufficient  to  support  a  ver- 
dict of  guilty.  Hogan  v.  State,  13  Tex.  App.  319.  What  evidence  of  deliberate  in- 
tent to  kill  establishes  murder  in  the  first  degree.  Quigley  v.  Commonwealth,  84  Pa. 
St.  18;  Lanahan  r.  Commonwealth,  Id.  80;  Pistorius  v.  Commonwealth,  Id.  158; 
Linsday  v.  People,  63  N.  Y.  143.  What  is  sufficient  evidence  of  express  malice. 
Kemp  V.  State,  11  Tex.  App.  174 ;  Holmes  v.  State,  Id.  223;  State  v.  Clavis,  80  N.  C.  353. 
The  possession  of  stolen  property  taken  at  the  time  the  murder  was  committed  is  a  strong 
circumstance  tending  to  show  guilt.  Poe  v.  State,  10  Lea,  (Tenn.)  673.  See  Bettsr.  State, 
66  Ga.  508.  Evidence  is  admissible  that  defendant  soon  after  the  murder,  had  much  more 
money  in  his  possession  than  before.  State  v.  Wintzingerode,  9  Oregon,  153.  See 
Clough  V.  State,  7  Neb.  320.  And  that  deceased  had  money  in  his  house.  State  v. 
Crowley,  33  La.  An.  782.  As  to  the  sufficiency  of  circumstantial  evidence  to  connect 
the  accused  with  the  crime.     Brown  v.  State,  4  Tex.  App.  275, 

'  If  one  throw  a  bludgeon  to  another  with  intent  to  furnish  that  other  with  a  deadly 
weapon  to  assault,  and  the  assault  is  made  and  murder  committed,  he  who  threw  the 
bludgeon  with  such  intent  is  equally  guilty  with  him  who  struck  the  blow.  Com- 
monwealth V.  Drew  et  al.,  4  Mass.  391.  The  mere  sanction  or  presence  at  the  com- 
mission of  a  homicide,  whether  passive  or  constrained,  does  not  render  a  person  guilty 
of  murder.  Butler  d.  Commonwealth,  2  Duv.  435  ;  Plumer  ?'.  Commonwealth,  1  Bush, 
76.  [But  where  two  make  an  assault,  resulting  in  death,  both  are  principals.  People 
V.  Weber,  66  Cal.  391.]  If  a  person  fires  into  a  crowd,  either  for  the  purpose  of  kill- 
ing somebody,  or  recklessly,  it  will  be  murder;  if  the  firing  is  accidental,  it  will  be 
only  manslaughter.  Galliher  v.  Commonwealth,  2  Duv.  163,  The  f;ict  that  the  kill- 
ing was  committed  by  a  crowd  of  persons  engaged  in  a  riot,  does  not  distinguish  it  in 
kind  or  degree  from  other  felonious  homicides.  State  v.  Jenkins,  14  Kich.  Law, 
215.    S. 


MURDER.  945 

at  a  murder,  but  takes  no  part  in  it,  nor  endeavors  to  prevent  it,  nor 
apprehends  the  murderer,  this,  though  highly  criminal,  will  not  of 
itself  render  him  either  principal  or  accessory.  Foster,  350.  But  in 
case  of  assassination  or  murder  committed  in  private,  the  circumstances 
last  stated  may  be  made  use  of  against  A.,  as  evidence  of  consent* or 
concurrence  on  his  part,  and  in  that  light  should  be  left  to  the  jury, 
if  he  be  put  upon  his  trial.  Foster,  350.  Where  the  prisoner  is 
charged  M'ith  committing  the  act  himself,  and  it  appears  to  have  been 
committed  in  his  presence  by  a  third  person,  the  indictment  is  sus- 
tained.^ Thus,  where  the  indictment  charged  that  the  prisoner  "  with 
both  her  hands  about  the  neck  of  one  M.  D.,  suifocated  and  strangled," 
etc.,  and  it  was  doubtful  whether  the  murder  was  not  committed  in 
the  prisoner's  presence  by  third  persons  ;  Parke,  J.,  in  summing  up, 
said,  "  If  you  are  satisfied  that  this  child  came  by  her  death  by  suifo- 
cation  or  strangulation,  it  is  not  necessary  that  the  prisoner  should 
have  done  it  with  her  own  hands  ;  for  if  it  was  done  by  any  other 
person  in  her  presence,  she  being  privy  to  it,  and  so  near  as  to  be  able 
to  assist,  she  may  be  properly  convicted  on  this  indictment."  R.  v. 
Culkin,  5  C.  &  P.  121,  24  E.  C.  L. 

Although  where  a  man  goes  out  with  intent  to  commit  a  felony, 
and  in  the  pursuit  of  that  unlawful  purpose  death  ensues,  it  is 
murder ;  yet,  if  several  go  out  with  a  common  intent  to  commit  a 
*felony,  and  death  ensues  by  the  act  of  one  of  the  party,  the  rest  r^yco 
will  not  necessarily  be  guilty  of  murder.  If  three  persons,  says  L 
Parke,  J.,  go  out  to  commit  a  felony,  and  one  of  them,  unknown  to  the 
others,  puts  a  pistol  in  his  pocket,  and  commits  a  felony  of  another  kind, 
such  as  murder,  the  two  who  did  not  concur  in  this  second  felony, 
will  not  be  guilty  of  it,  notwithstanding  it  happened  while  they  were 
engaged  with  him  in  the  felonious  act  for  which  they  went  out. 
R.  V.  Duffey,  1  Lewin,  C.  C.  1 94.  Three  soldiers  Avent  together  to  rob 
an  orchard ;  two  got  upon  a  pear  tree,  and  the  third  stood  at  the  gate 
with  a  drawn  sword  in  his  hand.  The  owner's  son,  coming  by,  col- 
lared the  man  at  the  gate,  and  asked  him  what  business  he  had  there, 
whereupon  the  soldier  stabbed  him.  It  was  ruled  by  Holt,  C.  J.,  to 
be  murder  in  him,  but  that  those  in  the  tree  were  innocent.  They 
came  to  commit  an  inconsiderable  trespass,  and  the  man  was  killed 
on  a  sudden  affray  without  their  knowledge.  It  would,  said  Holt, 
have  been  otherwise  if  they  had  come  thither  with  a  general  resolu- 
tion against  all  opposers.  This  circumstance,  observes  Mr.  Justice 
Foster,  would  have  shown  that  the  murder  was  committed  in  pros- 
ecution of  their  original  purpose.  But  that  not  appearing  to  have 
been  the  case,  those  in  the  tree  were  to  be  considered  as  mere  tres- 
passers. Their  offence  could  not  be  connected  with  that  of  him  who 
committed  the  murder.  Foster,  353.  The  following  is  a  leading 
case  on  the  subject.  A  great  number  of  persons  assembled  at  a 
house  called  Sissinghurst,  in  Kent,  and  committed  a  great  riot  and 
battery  upon  the  possessors  of  a  wood  adjacent.  One  of  their  names, 
viz.,  A.,  was  known,  but  the  rest  were  not  known,  and  a  warrant  was 
1  Davis  V.  State,  3  Tex.  App.  91. 

60 


946  MURDER. 

obtained  from  a  justice  of  the  peace  to  apprehend  the  said  A.  and 
divers  persons  unknown,  who  were  all  together  in  Sissinghurst-house. 
The  constable,  with  sixteen  or  twenty  other  persons,  his  assistants,  went 
with  the  warrant  to  the  house,  demanded  entrance,  and  acquainted 
some  of  the  persons  within  that  he  was  a  constable,  and  came  with 
the  justices'  warrant,  demanding  A.  and  the  rest  of  the  offenders  who 
were  in  the  house.  One  of  the  persons  from  within  coming  out,  read 
the  warrant,  but  denied  admission  to  the  constable,  or  to  deliver  A. 
or  any  of  the  malefactors,  but  going  in,  commanded  the  rest  of  the 
company  to  stand  to  their  staves.  The  constable  and  his  assistants, 
fearing  mischief,  went  away,  and  being  about  five  rods  from  the  door, 
several  persons,  about  fifteen  in  number,  issued  out,  and  pursued  the 
constable  and  his  assistants.  The  constable  commanded  the  peace, 
but  they  fell  on  his  company,  killing  one  and  wounding  others,  and 
they  then  retired  into  the  house  to  their  companions,  of  whom  A. 
and  one  G.,  who  read  the  Avarrant,  were  two.  For  this,  A.  and  G. 
with  those  who  had  issued  from  the  house,  and  others,  were  indicted 
for  murder,  and  these  points  were  resolved  by  the  court  of  K.  B. 
].  Tliat  although  the  indictment  was  that  B.  gave  the  stroke,  and 
the  rest  were  present  aiding  and  assisting,  and  though  in  truth  C. 
gave  the  stroke,  or  it  did  not  appear  upon  the  evidence  which  of 
them  gave  it,  but  only  that  it  was  given  by  one  of  the  rioters,  yet 
that  such  evidence  was  sufficient  to  maintain  the  indictment,  for  in 
law  it  was  the  stroke  of  all  the  party,  according  to  the  resolution  in 
R.  V.  Mackalley  (9  Co.  67  b.)  2.  That,  in  this  case  all  that  were  present 
and  assisting  the  rioters  were  guilty  of  the  death  of  the  party  slain, 
though  they  did  not  all  actually  strike  him  or  any  of  the  constable's 
company.  3.  That  those  within  the  house,  if  they  abetted  or  coun- 
selled the  riot,  were  in  law  present,  aiding  and  assisting,  and 
^__  .-,  *principals,  as  well  as  those  that  issued  out  and  actually  com- 
J  mitted  the  assault,  for  it  was  but  within  five  rods  of  the  house, 
and  in  view  of  it,  and  all  done  as  it  were  at  the  same  instant.  4.  That 
there  was  sufficient  notice  that  it  Avas  the  constable,  before  the  man  was 
killed  ;  because  he  was  the  constable  of  the  village;  and  because  he 
notified  his  business  at  the  door  before  the  assault ;  and  because,  after 
his  retreat,  and  before  the  man  was  slain,  he  commanded  the  peace. 
5.  It  was  resolved  that  the  killing  the  assistant  of  the  constable  was 
murder,  as  well  as  the  constable  himself.  6.  That  those  who  came 
to  the  assistance  of  the  constable,  though  not  specially  called  thereto, 
were  under  the  same  protection  as  if  they  had  been  called  to  his 
assistance  by  name.  7.  That  though  the  constable  retired  with  his 
company  upon  the  non-delivery  up  of  A.,  yet  the  killing  of  the 
assistant  in  that  retreat  was  murder ;  because  the  retreat  was  one 
continued  act  in  pursuance  of  his  office,  being  necessary  when  he 
could  not  attain  the  object  of  his  warrant ;  but  principally  because  the 
constable,  in  the  beginning  of  the  assault,  and  before  the  man  was 
struck,  commanded  the  peace.  In  the  conclusion  the  jury  found  nine 
of  the  prisoners  guilty,  and  acquitted  those  within,  not  because  they 
were  absent,  but  because  there  was  no  clear  evidence  that  they  con- 


MURDER.  947 

sented  to  the  assault,  as  the  jury  thought.     SIssInghurst-house  case, 
1  Hale,  P.  C.  461. 

Although  tlie  criminal  intent  of  a  single  person,  who,  without  the 
knowledge  or  assent  of  his  companions,  is  guilty  of  homicide,  will 
not  involve  them  in  his  guilt,  yet  it  is  otherwise  where  all  the  party 
proceed  with  an  intention  to  commit  an  unlawful  act,  and  with  a 
resolution  at  the  same  time  to  overcome  all  opposition  by  force  ;  for 
if,  in  })ursuance  of  such  resolution,  one  of  the  party  be  guilty  of 
homicide,  his  companions  will  be  liable  to  the  penalty  which  he  has 
incurred.  Foster,  353 ;  Hawk.  P.  C.  b.  2,  c.  29,  s.  8.^  A  person  of 
the  name  of  John  Thom,  Avho  called  himself  Sir  William  Courtenay, 
and  who  Avas  insane,  collected  a  number  of  persons  together,  having  a 
common  purpose  of  resisting  the  lawfully  constituted  authorities,  Thom 
having  declared  that  he  would  cut  down  any  constables  who  came 
against  him.  Thom,  in  the  presence  of  the  two  prisoners,  afterwards 
shot  an  assistant  of  a  constable  who  came  to  apprehend  Thom,  under 
a  warrant.  It  was  held  by  Lord  Denman,  C.  J.,  that  the  prisoners 
were  guilty  of  murder  as  principals  in  the  first  degree,  and  that  any 
apprehension  that  they  had  of  personal  danger  to  themselves  from 
Thom,  was  no  ground  of  defence  for  continuing  with  him  after  he  had 
so  declared  his  purpose ;  and  also  that  it  was  no  ground  of  defence, 
that  Thom  and  his  party  had  no  distinct  or  particular  object  in  view 
when  they  assembled  together  and  armed  themselves.  R.  v.  Tyler,  8  C. 
&  P.  616,  34  E.  C.  L.  The  apprehension  of  personal  danger  does  not 
fiirnish  any  excuse  for  assisting  in  doing  any  act  which  is  illegal.  Id, 
See  also  R.  v.  Skeet,  4  F.  &  F.  931. 

Proof  of  the  means  of  killing.  The  killing  may  be  by  any  of  the 
thousand  forms  of  death  by  wdiich  life  may  be  overcome.  4  Bl.  Com. 
196.  But  there  must  be  a  corporal  injury  inflicted  ;  and  therefore,  if 
a  man,  by  working  upon  the  fancy  of  another,  or  by  any  unkind  usage, 
puts  another  into  such  a  passion  of  grief  or  fear,  as  that  he  either 
dies  suddenly  or  contracts  some  disease,  in  consequence  of  which  he 
dies,  this  is  no  felony,  because  no  external  act  of  violence  was  oiFered 
of  which  the  law  can  take  notice.  1  Hale,  P.  C.  429.  Seven  modes 
*of  killing  are  enumerated  by  Lord  Hale.  1.  By  exposing  a  r*7rrr 
sick  or  weak  person  to  the  cold.  2.  By  laying  an  impotent  L 
person  abroad  so  that  he  may  be  exposed  to  and  receive  mortal  harm. 
3.  By  imprisoning  a  man  so  strictly  that  he  dies.  4.  By  starving  or 
famine.     5.  By  wounding  or  blows.     6.  By  poisoning.     7.  By  laying 

^  Therefore  where  it  is  shown  that  two  or  more  persons  acted  in  concert  in  the  com- 
mission of  an  alleged  murder,  the  State  may  show  upon  the  separate  trial  of  one,  the 
motives  which  actuated  the  others.  Rufer  v.  State,  25  O.  St.  464 ;  see  Kehoe  v.  Com- 
monwealth, 85  Pa.  St.  127.  But  the  conspiracy  cannot  be  shown  in  this  way.  Eufer 
V.  State,  25  O.  St.  464.  Until  concert  is  shown  such  evidence  must  be  excluded. 
Wright  V.  State,  43  Tex.  170 ;  Preston  t'.  State,  4  Tex.  App.  186.  Where  two  persons 
have  fired  simultaneously  at  deceased,  there  being  no  evidence  of  a  conspiracy  between 
them,  if  the  jury  are  in  doubt  which  shot  killed  the  deceased,  the  prisoner  is  entitled 
to  the  benefit  of  that  doubt.    People  v.  Woody,  45  Cal.  289. 


948  MURDER. 

noxious  and  noisome  filth  at  a  man's  door  to  poison  him.     1  Hale, 
P.  C.  431.^ 

Forcinj^  a  person  to  do  an  act  which  is  likely  to  produce  and  does 
produce  death,  is  murder ;  and  threats  may  constitute  such  force.  The 
indictment  charged,  first,  that  the  prisoner  killed  his  wife  by  beating; 
secondly,  by  throwing  her  out  of  the  window,  and  thirdly  and 
fourthly,  that  he  threatened  to  throw  her  out  of  the  window  and  to 
murder  her,  and  tliat  by  such  threats  and  violence  she  was  so  terrified 
that,  through  fear  of  putting  his  threats  into  execution,  she  threw  her- 
self out  of  the  window,  and  of  the  beating  and  bruising  received  by 
the  fall,  died.  There  was  strong  evidence  that  the  death  of  the  wife 
was  occasioned  by  the  blows  she  received  before  her  fall,  but  Heath, 
J.,  Gibbs,  J.,  and  Bayley,  J.,  were  of  opinion,  that  if  her  death  was 
occasioned  partly  by  blows,  and  partly  by  the  fall,  yet  if  she  was  con- 
strained by  her  husband's  threats  of  further  violence,  and  from  a  well- 
grounded  apprehension  of  his  doing  such  further  violence  as  would 
endanger  her  life,  he  was  answerable  for  the  consequences  of  the  fall, 
as  much  as  if  he  had  thrown  her  out  of  the  window  himself.  The 
prisoner,  however,  was  acquitted,  the  jury  being  of  opinion  that  the 
deceased  threw  herself  out  of  the  window  from  her  own  intemperance, 
and  not  under  the  influence  of  the  threats.  R.  v.  Evans,  1  Russ. 
Cri.  651,  5th  ed. ;  see  also  R.  v.  Pitts,  Carr.  &  M.  284,  41  E.  C.  L. 

If  a  man  has  a  beast  which  is  used  to  do  mischief,  and  he,  knowing 
this,  purposely  turns  it  loose,  though  barely  to  frighten  people,  and 
make  what  is  called  sport,  and  death  ensues,  it  is  as  much  murder  as 
if  he  had  incited  a  bear  or  a  dog  to  worry  the  party ;  and  if,  knowing 
its  propensity,  he  suifers  it  to  go  abroad,  and  it  kills  a  man,  even  this 
is  manslaughter  in  the  owner.  4  Bl.  Com.  197  ;  Palmer,  545;  1  Hale, 
P.  C.  431. 

In  proving  murder  by  poison,  the  evidence  of  medical  men  is  fre- 
quently required,  and  in  applying  that  evidence  to  the  facts  of  the 
case,  it  is  not  unusual  for  difficulties  to  occur.  Upon  this  subject  the 
following  observations  are  well  deserving  attention.  In  general  it 
may  be  taken  that  where  the  testimonials  of  professional  men  are  affirm- 
ative, they  may  be  safely  credited ;  but  where  negative,  they  do  not 
appear  to  amount  to  a  disproof  of  a  charge  otherwise  established  by 
strong,  various,  and  independent  evidence.  Thus  on  the  view  of  a 
body  after  death,  on  suspicion  of  poison,  a  physician  may  see  cause 
for  not  positively  pronouncing  that  the  party  died  by  poison;  yet,  if 
the  party  charged  be  interested  in  the  death,  if  he  appears  to  have 
made  preparations  of  poisons  without  any  probable  just  motive,  and 
this  secretly;  if  it  be  in  evidence  that  he  has  in  other  instances 
brought  the  life  of  the  deceased  into  hazard ;  if  he  has  discovered  an 
expectation  of  the  fatal  event ;  if  that  event  has  taken  place  suddenly 
and  without  previous  circumstances  of  ill-health ;  if  he  has  endeav- 

*  The  State  may  show  the  cause  of  deatli  without  the  aid  of  professional  witnesses 
where  the  death  is  not  immediate  on  the  wound.  Smith  v.  State,  43  Tex.  643.  The 
condition  of  the  clothing  of  the  deceased  is  admissible  to  show  the  direction  of  a 
shot,  when  that  is  material.    King  v.  State,  13  Tex.  App.  277. 


MURDER.  949 

orcd  to  stifle  the  inquiry  by  prematurely  burying  the  body,  and  after- 
"wards,  on  inspection,  signs  agreeing  with  poison  are  observed,  though 
sueh  as  medical  men  will  not  i)<)sitively  aflirm  could  not  be  owing  to 
any  other  cause,  the  accumulative  strength  *of'  circumstantial  r*7K/> 
evidence  may  be  such  as  to  warrant  a  conviction,  since  more  *- 
cannot  be  required  than  that  the  charge  should  be  rendered  highly 
credible  from  a  variety  of  detached  points  of  j)roof,  and  that  suj)pos- 
ing  poison  to  have  been  employed,  stronger  demonstrations  could  not 
reasonably  have  been  expected,  under  all  the  circumstances,  to  have  been 
produced.  Loift,  in  1  Gilb.  Ev.  302.  With  regard  to  the  law  of  prin- 
cipal and  accessory,  there  is  a  distinction  between  the  case  of  murder 
by  poison  and  other  modes  of  killing.  In  general,  in  order  to  render 
a  party  guilty  as  principal,  it  is  necessary  either  that  he  should  with 
his  own  hand  have  committed  thg  offence,  or  that  he  should  have  been 
present  aiding  and  abetting ;  but  in  the  case  of  killing  by  poison  it  is 
otherwise.  If  A.,  with  an  intention  to  destroy  B.,  lays  poison  in  his 
way,  and  B.  takes  it  and  dies,  A.,  though  absent  when  the  poison  is 
taken,  is  a  principal.  So  if  A.  had  prej^ared  the  poison  and  delivered 
it  to  D.  to  be  administered  to  B.  as  a  medicine,  and  D.,  in  the  absence  of 
A.,  accordingly  administered  it  not  knowing  that  it  was  poison,  and  B. 
had  died  of  it,  A.  would  have  been  guilty  of  murder  as  principal. 
For  D.  being  innocent,  A.  must  have  gone  unpunished,  unless  he  could 
be  considered  as  principal.  But  if  D.  had  known  of  the  poison  as  well 
as  A.  did,  he  would  have  been  a  })rincipal  in  the  murder,  and  A.  would 
have  been  accessory  before  the  fact.  Foster,  349  ;  Kel.  52.  An  in- 
dictment for  the  murder  of  A.  B.  by  poison,  stating  that  the  prisoner 
gave  and  administered  a  certain  deadly  poison,  is  supported  by  proof 
that  the  prisoner  gave  the  poison  to  C.  D.  to  administer  as  a  medicine 
to  A.  B.,  but  C.  D.  neglecting  to  do  so,  it  was  accidentally  given  to 
A.  B.  by  a  child  ;  the  prisoner's  intention  throughout  being  to  murder. 
K.  V.  Michael,  2  Moo.  C.  C.  120 ;  9  C.  &  P.  356,  38  E.  C.  L. 

Whether  or  not  the  giving  false  evidence  against  another  upon  a 
capital  charge,  with  intent  to  take  away  his  life  (the  party  being  exe- 
cuted upon  such  evidence)  will  amount  to  nmrder  appears  to  be  a 
doubtful  point.  There  are  not  wanting  old  authorities  to  prove  that 
such  an  offence  amounts  to  wilful  murder.  Mirror,  c.  1,  s.  9 ;  Brit, 
c.  52 ;  Bract.  1.  3,  c.  4 ;  see  also  Hawk.  P.  C.  b.  1,  c.  31,  s.  7.  But 
Lord  Coke  says,  "  it  is  not  holden  for  murder  at  this  day."  3  Inst. 
43.  The  point  arose  in  E,.  v.  McDaniel,  where  the  prisoners  were 
indicted  for  wilful  murder,  and  a  special  verdict  was  found,  in  order 
that  the  point  of  law  might  be  more  fully  considered.  But  the  attor- 
ney-general declining  to  argue  the  point  of  law,  the  prisoners  were 
discharged.  Foster,  131.  The  opinion  of  Sir  Michael  Foster,  who 
has  reported  the  case,  is  against  the  holding  the  offence  to  be  murder, 
though  he  admits  that  there  are  strong  passages  in  the  ancient  writers 
which  countenance  such  a  prosecution.  The  practice  of  many  ages, 
however,  he  observes,  by  no  means  countenances  those  opinions,  and 
he  alludes  to  the  prosecution  against  Titus  Oates,  as  showing  that  at 
that  day  the  offence  could  not  have  been  considered  as  amounting  to 


950  MURDER. 

murder,  otherwise  Oates  would  undoubtedly  have  been  so  charged. 
Foster,  132.  Sir  W.  Blackstone  states,  on  the  contrary,  that  though 
the  attorney-general  declined,  in  R-.  v.  MoDaniel,  to  argue  the 
point  of  law,  yet  he  has  good  grounds  to  believe  it  was  not  from 
anv  apprehension  of  his  that  the  point  was  not  maintainable,  but 
from  other  prudential  reasons,  and  that  nothing,  therefore,  should  be 
concluded  from  the  waiving  of  that  prosecution.  4  Bl.  Com.  196 
^^.--,  (w).  And  it  is  asserted  by  Mr.  East  that  he  has  *heard 
'"^'J  Lord  Mansfield  say  that  the  opinions  of  several  of  the 
judi^es  at  the  time,  and  his  own,  were  strongly  in  support  of  the 
indfctment.  1  East,  P.  C.  333  (w).  Sir  W.  Blackstone  has  not  given 
any  positive  opinion  against  such  an  indictment,  merely  observing  that 
the  modern  law  (to  avoid  the  danger  of  deterring  witnesses  from 
giving  evidence  upon  capital  prosecutions,  if  it  must  be  at  the  risk  of 
their  lives)  has  not  yet  punished  the  oifence  as  murder.  4  Bl.  Com.  197. 
Doubts  occasionally  arise  in  cases  of  murder  whether  the  death 
has  been  occasioned  by  the  wound  or  by  the  unskilful  and  improper 
treatment  of  that  wound.  The  law  on  this  point  is  laid  down  at 
some  length  by  Lord  Hale.  If,  he  says,  a  man  give  another  a  stroke, 
which,  it  may  be,  is  not  in  itself  so  mortal  but  that  with  good  care 
he  might  be  cured,  yet  if  he  dies  within  the  year  and  day,  it  is  a 
homicide  or  murder  as  the  case  is,  and  so  it  has  been  always  ruled. 
But  if  the  wound  be  not  mortal,  but  with  ill  applications  by  the 
party  or  those  about  him,  of  unwholesome  salves  or  medicines,  the 
party  dies,  if  it  clearly  appears  that  the  medicine  and  not  the  wound 
was  the  cause  of  the  death,  it  seems  it  is  not  homicide,  but  then  it 
must  clearly  and  certainly  appear  to  be  so.  But  if  a  man  receive  a 
wound  which  is  not  in  itself  mortal,  but  for  want  of  helpful  applica- 
tions or  neglect,  it  turn  to  a  gangrene  or  a  fever,  and  the  gangrene  or 
fever  be  the  immediate  cause  of  the  death,  yet  this  is  murder  or 
manslaughter  in  him  that  gave  the  stroke  or  wound  ;  for  that  wound, 
thouo-h  it  was  not  the  immediate  cause  of  the  death,  yet  if  it  were 
the  mediate  cause,  and  the  fever  or  gangrene  the  immediate  cause, 
the  wound  was  the  cause  of  the  gangrene  or  fever,  and  so  consequently 
causa  causans}    1  Hale,  P.  C.  428.  Neglect  or  disorder  in  the  person 

^  Commonwealth  v.  Green,  1  Ash.  289 ;  State  v.  Scott,  12  La.  An.  274 ;  Common- 
wealth  V.  Hachett,  2  Allen,  136.  When  the  wound  is  adequate  and  calculated  to  pro- 
duce death,  it  is  no  excuse  to  show  that  had  proper  caution  and  attention  been  given 
a  recovery  raiglit  have  ensued.  Neglect  or  maltreatment  will  not  excuse,  except  in 
cases  where  doubt  exists  as  to  the  character  of  the  wound.  State  v.  Corbett,  1  Jones's 
Law,  267.  [The  burden  is  upon  the  defendant  to  show  that  the  wound  he  gave  was 
not  the  cause  of  death.  State  v.  Briscoe,  30  La.  An.  Pt.  1,  433.  Where  there  is  evi- 
dence of  malpractice  on  the  part  of  the  surgeon  who  attended  the  deceased,  the  jury 
cannot  convict  unless  satisfied  that  death  resulted  from  the  wound  and  not  from  the 
malpractice.  Brown  ?'.  vState,  38  Tex.  482.]  If  a  wound  is  inflicted  not  dangerous  in 
itself,  and  the  death  which  ensues  was  evidently  occasioned  by  the  grossly  er rone nus 
treatment  of  it,  the  original  author  will  not  be  accountable.  Parsons  v.  State,  21  Ala. 
300.  As  to  death  caused  by  disease  but  quickened  by  the  blow.  Livingston's  Case, 
14  Gratt.  592  ;  Commonwealth  v.  Fox,  7  Gray,  585.     S. 

Tlie  previous  condition  of  health  of  the  deceased  may  be  shown  on  behalf  of  de- 
fendant. Phillips  V.  State,  68  Ala.  469.  Particular  acts  of  drunkenness  not  shown  to 
be  connected  with  the  death  are  irrelevant.     Commonwealth  v.  Ryan,  134  Mass,  223. 


MURDER.  951 

who  receives  the  wound  will  not  excuse  the  person  who  gave  it. 
Thus  it  Avas  resolved  that  if  one  give  wounds  to  another  who  neglects 
the  cure  of  tiicm,  and  is  disorderly,  and  does  not  keep  that  rule 
which  a  wounded  person  should  do,  if  he  die  it  is  murder  or  man- 
slaughter, according  to  the  circumstances  of  the  case,  because,  if  the 
wounds  had  not  been  given,  the  man  had  not  died.  R,.  v.  Rews,  Kcl. 
26.  So  Maule,  J.,  has  held  that  a  party  inflicting  a  wound  which 
ultimately  becomes  the  cause  of  death,  is  guilty  of  murder,  though 
life  might  have  been  preserved  if  the  deceased  had  not  refused  to 
submit  to  a  surgical  operation.  R.  v.  Holland,  2  Moo.  &  R.  351. 
In  the  above  case  the  deceased  had  been  severely  cut  with  an  iron 
instrument  across  one  of  his  fingers,  and  had  refused  to  have  it 
amputated.  At  the  end  of  a  fortnight  lockjaw  came  on,  the  finger 
was  then  amputated,  but  too  late,  and  the  lockjaw  ultimately  caused 
death.  The  surgeon  gave  it  as  his  opinion  that  if  the  finger  had  been 
amputated  at  first  the  deceased's  life  would  most  probably  have  been 
preserved.^ 

Whether  the  infliction  of  a  blow  which,  had  the  party  upon  whom 
it  Avas  infiicted  been  sober,  would  not  have  produced  death,  Avill, 
when  inflicted  upon  a  person  intoxicated  and  producing  death,  be 
deemed  murder  or  manslaughter  may  admit  of  much  question.  The 
point  arose  in  the  following  case  : — Upon  an  indictment  for  man- 
slaughter, it  appeared  that  the  prisoner  and  the  deceased  had  been 
fighting,  and  the  deceased  was  killed.  A  surgeon  stated  that  a  blow 
on  the  stomach  in  the  state  in  which  the  deceased  was,  arising  from 
passion  and  intoxication,  was  calculated  to  occasion  death,  but  not 
so  if  the  jmrty  had  been  sober.  Hullock,  B.,  directed  an  acquittal, 
*observing,  that  where  the  death  was  occasioned  partly  by  a  blow  r*7  ko 
and  partly  by  a  predisposing  circumstance,  it  was  impossible  to  L 
apportion  the  operations  of  the  several  causes,  and  to  say  with  certainty 
that  the  death  Avas  immediately  occasioned  by  any  one  of  them  in  parti- 
cular. His  lordship  cited  from  his  notes  the  folloAving  case,  R.  v.  Brown, 
April,  1824  :  Indictment  charged  Avith  killing  by  striking.  The  jury 
found  that  the  death  AA^as  occasioned  by  over-exertion  in  the  fight. 
The  judges  held  that  the  prisoner  Avas  entitled  to  an  acquittal.  R.  v. 
Johnson,  1  LcAvin,  C.  C.  164.  It  maybe  doubted  hoAV  far  the  ruling 
of  the  learned  judge  in  this  case  was  correct ;  for  if  by  the  act  of 
the  prisoner  the  death  of  the  party  Avas  accelerated,  it  seems  that  the 
prisoner  Avould  be  guilty  of  the  felony.  See  R.  v.  Martin,  5  C.  &  P. 
130,  24  E.  C.  L.,  post,  p.  760.  And  although  a  state  of  intoxi- 
cation might  render  the  party  more  liable  to  suffer  injury  from  the 
bloAA^s,  yet  it  is  difficult  to  say  that  the  intoxication  was  the  cause 
of  his  death,  any  more  tlian  the  infirmity  of  age  or  sickness,  AA^iich 
could  not,  it  is  quite  clear,  be  so  esteemed.  Very  few  decisions  are 
to  be  found  in  our  oAvn  books  on  this  subject,  and  it  may  therefore 
be  alloAvable  to  illustrate  it  by  a  reference  to  a  fcAV  cases  in  the  Scotch 
laAV,  Avhich  is  in  principle  the  same  as  our  OAvn  on  this  point,  and  to 
the  text-writers  on  the  criminal  laAV  of  that  country.  It  is  clear, 
1  KeUey  v.  State,  53  Ind.  311. 


952  MURDER. 

says  Mr.  Alison,  that  if  the  death  be  owing  not  to  the  effects  of  the 
wound,  but  to  a  supervening  accident  or  misfortune,  though  induced 
by  the  first  violence,  the  prisoner  cannot  be  convicted  of  homicide. 
Thus,  if  a  person  be  wounded,  no  matter  how  severely,  yet  if  he 
recover  and  engage  in  his  ordinary  occupation,  and  bear  about  with 
him  no  apparent  seed  of  his  malady,  the  as.sailant  cannot  afterwards 
be  involved  in  the  consequences  of  his  death,  even  though  it  was 
connected  with  the  previous  violence.  So  it  was  found  in  the  case  of 
Patrick  Kinninmonth,  Nov.  2,  1697,  Alison's  Princ.  Crim.  Law  of 
Scot.  146  ;  1  Hume,  181.  So,  if  a  person  be  wounded,  but  recovers 
after  a  long  confinement,  which  induces  a  consumption  which  ulti- 
mately proves  fatal,  still  the  death  is  here  so  remotely  connected 
with  the  original  violence,  that  human  tribunals  cannot  consider  the 
one  as  the  cause  of  the  other.  Id.  Burnett,  550.  If,  says  Mr.  Alison, 
the  death  be  owing  not  to  tiie  natural  and  accustomed  consequences 
of  the  injury,  but  to  remote  and  improbable  accidents  which  have 
since  intervened,  the  prisoner  must  be  acquitted.  Alison's  Princ. 
Crim.  Law  of  Scot.  147.  The  prisoner  was  gamekeeper  to  Lord 
Blautyre,  and,  in  the  course  of  the  scuffle  with  a  poacher,  the  latter 
discharged  his  piece,  which  lodged  its  contents  in  his  thigh.  He  was 
carried  to  the  Glasgow  infirmary,  where  erysipelas  at  the  time  was 
extremely  prevalent,  and  having  been  unfortunately  put  into  a  bed 
formerly  occupied  by  a  patient  with  that  disorder,  he  took  it,  and 
died  in  consequence.  Till  this  supervened  the  wound  bore  no  pecu- 
liarly dangerous  symptoms.  The  public  prosecutor  strongly  con- 
tended that  if  the  man  had  not  been  fired  at,  he  never  would  have 
been  exposed  to  the  contagion  of  the  erysipelas,  and  therefore  his 
death  was  by  a  circuitous  but  legitimate  consequence,  owing  to  the 
wound  ;  but  this  was  deemed  too  remote  a  conclusion,  and  the  pris- 
oner, under  the  direction  of  Lords  Justices  Clerk,  Boyle,  and  Suc- 
coth,  was  accpiitted.  R.  v.  Campbell,  Id,  In  like  manner  where 
the  prisoner  had  thrown  a  quantity  of  sulphuric  acid  in  the  face 
of  the  deceased,  and  produced  sucli  inflammation  in  the  eyes  that 
bleeding  was  deemed  necessary,  and  the  orifice  made  by  the  surgeon 
i^jrqi  *inflaraed,  and  of  this  the  party  died,  but  not  of  the  injury  in 
-■  the  face,  the  court  held  this  second  injury,  produced  by  a  dif- 
ferent hand,  not  so  connected  with  the  original  violence  as  to  support 
the  charge  of  murder,  and  the  prisoner  was  convicted  of  assault  only. 
R.  V.  Macmillan,  Id.  If  the  death  be  truly  owing  to  the  wound,  it 
signifies  not  that  under  more  favorable  circumstances,  and  with  more 
skilful  treatment,  the  fatal  result  might  have  been  averted.  1  Bur- 
nett, 551  ;  Alison,  149.  Thus,  if  an  assault  be  made  which  opens  an 
artery,  it  will  be  no  defence  to  plead  that  by  the  assistance  of  a  sur- 
geon the  wound  might  have  been  stanched  and  life  preserved.  1  Hume, 
184  ;  Alison,  1 49.  The  prisoner  was  one  of  a  party  of  smugglers  who 
had  fired  at  an  officer  of  excise.  The  wounded  man  was  carried  to  the 
nearest  village,  where  he  was  attended  by  a  surgeon  of  the  country, 
who  was  not  deficient  in  attention,  but  fever  ensuing,  the  party  died  at 
the  end  of  three  weeks.     It  was  objected  that  by  skilful  treatment  the 


MURDER.  953 

man  might  have  recovered,  but  the  court  said  that  it  was  lor  the  pris- 
oner to  prove,  if  he  could,  that  deatli  ensued  ex  malo  regimine.  II,  v. 
Edgar,  1  Alison,  149.  The  true  distinction  in  all  such  cases  is,  that 
if  the  death  was  evidently  occasioned  by  grossly  erroneous  medical 
treatment,  the  original  author  will  not  be  answerable  ;  but  if  it  was  oc- 
casioned from  want  merely  of  the  higher  skill  which  can  only  be  com- 
manded in  great  towns,  he  will,  because  he  has  wilfully  exposed  the 
deceased  to  a  risk  from  which  practically  he  had  no  means  of  escapiug. 
Accordingly,  where  the  prisoner  was  indicted  for  the  culpable  homi- 
cide of  a  boy  in  a  manufactory  by  striking  him  on  the  shoulder,  which 
dislocated  his  arm,  it  appearing  that  the  arm  had  been  worked  upon 
two  days  after  the  blow  by  an  ignorant  bone-setter,  whose  operations 
did  more  harm  than  good,  and  that  in  consequence  of  the  inflam- 
mation thus  occasioned,  acting  upon  a  sickly  and  scrofulous  habit  of 
body,  a  white  swelling  ensued,  which  proved  fatal,  the  jury,  under  the 
direction  of  Lord  Meadowbank,  acquitted  the  prisoner.  R.  v.  Mace- 
wan,  Id.  Though  death  do  not  ensue  for  weeks  or  months  after  the 
injury  was  received,  yet  if  the  wound  be  severe,  and  kept  in  a  regular 
progression  from  bad  to  worse,  so  that  the  patient  continually  lan- 
guishes and  is  consumed  by  it,  as  by  a  disease,  this  in  reason  and  law 
is  the  same  as  if  he  had  died  on  the  spot.  1  Hume,  185 ;  Alison's 
Princ.  Cr.  Law  of  Scot.  151.  Thus,  M'here  the  deceased,  a  post-boy, 
w^as  robbed,  cut,  and  left  on  the  ground  all  night,  and  death  ensued  at 
the  end  of  two  months,  and  it  was  proved  by  the  medical  evidence 
that  the  wound,  Avith  the  cold  which  the  deceased  got  by  lying  out  all 
night,  and  the  great  loss  of  blood  which  followed  on  it,  were  the  cause 
of  his  death,  the  prisoner  was  convicted  of  the  murder  as  well  as  the 
robbery.  R.  v.  Caldwall,  Burnett,  552  (a)  ;  Alison  Princ.  151. 
However  feeble  the  condition  of  the  deceased  may  have  been,  and 
however  short  his  tenure  of  life,  it  is  equally  murder,  as  if  the  person 
killed  had  been  in  the  prime  of  youth  and  vigor.  Accordingly, 
where  it  appeared  that  the  deceased,  a  sick  and  infirm  old  man, 
was  violently  beaten  with  a  pair  of  tongs,  of  which  in  a  few 
hours  he  died,  and  it  was  urged  that  his  death  was  rather  owing 
to  his  previous  infirm  condition  than  to  the  assault,  it  was  held  to  be 
murder.  R.  v.  Ramsay,  1  Hume,  183;  Alison's  Princ.  Cr.  Law  of 
Scot.  149.  The  same  point  lately  arose  in  a  case  in  this  coimtry. 
Upon  a  trial  for  manslaughter  it  appeared  that  the  deceased,  at  the 
time  of  the  blow  given,  was  in  an  infirm  state  of  health,  and  this  cir- 
cumstance was  observed  upon  on  behalf  of  the  prisoner,  but  Park,  J., 


*in  addressing  the  jury,  remarked  :  "  It  is  said  that  the  deceased 


[*760 


was  in  a  bad  state  of  health,  but  that  is  perfectly  immaterial, 
as,  if  the  prisoner  was  so  unfortunate  as  to  accelerate  her  death,  he 
must  answer  for  it."  R.  v.  Martin,  5  C.  &  P.  130,  24  E.  C.  L.  See 
also  R.  V.  Murton,  3  F.  &  F.  492. 

Proof  of  the  means  of  killing — ^variance  in  statement.  Wliere 
a  man  is  indicted  for  one  species  of  killing,  as  by  poison,  he  cannot  be 
convicted  by  evidence  of  a  totally  difierent  species  of  death,  as  by 


954  MURDER. 

shooting,  starving,  or  strangling.  But  if  the  means  of  death  proved 
a<>"rce  in  suhstance  with  those  charged,  it  is  sufficient.  1  East,  P.  C. 
341  ;  2  Hale,  P.  C.  185  ;  R.  v.  Kelly,  1  Moo.  C.  C.  R.  113.^  But 
see  the  24  iSi  25  Vict.  c.  100,  s.  6,  which  renders  it  unnecessary  to  state 
the  means  of  death  in  the  indictment.     Supra,  p.  747. 

Proof  of  malice — in  general.  The  malice  necessary  to  constitute 
the  crime  of  murder  is  not  confined  to  an  intention  to  take  away  the 
life  of  the  deceased,  but  includes  an  intent  to  do  any  unlawful  act 
which  may  probably  end  in  the  depriving  the  party  of  life.^  The 
malice  prepense,  says  Blackstone,  essential  to  murder,  is  not  so  prop- 
erly spite  or  malevolence  to  the  individual  in  particular,  as  an  evil  de- 
sign in  general,  the  dictate  of  a  wicked,  depraved,  and  malignant 
heart,  and  it  may  be  either  express  or  implied  in  law, — express,  as 
where  one,  upon  a  sudden  provocation,  beats  another  in  a  cruel  and 
unusual  manner,  so  that  he  dies,  though  he  did  not  intend  his  death  ; 
as  where  a  park-keeper  tied  a  boy  who  was  stealing  wood  to  a  horse's 
tail,  and  dragged  him  along  the  park  ;  and  a  schoolmaster  stamped 
on  his  scholar's  belly,  so  that  each  of  the  sufferers  died.  These  were 
justly  held  to  be  murders,  because  the  correction  being  excessive,  and 
such  as  could  not  proceed  but  from  a  bad  heart,  it  was  equivalent  to 
a  deliberate  act  of  slaughter.  4  Bl.  Com.  199.  Also,  continues  the 
same  writer,  in  many  cases  where  no  malice  is  expressed,  the  law  will 
imply  it,  as  where  a  man  wilfully  poisons  another ;  in  such  a  delib- 
erate act  the  law  presumes  malice,  though  no  particular  enmity  can  be 
proved.  And  if  a  man  kills  another  without  any,  or  without  a  con- 
siderable provocation,  the  law  implies  malice  ;  for  no  person,  unless  of 
an  abandoned  heart,  would  be  guilty  of  such  an  act  upon  a  slight 

^  Beavers  v.  State,  58  Ind.  530;  Nelson  v.  State,  1  Tex.  App.  41.  The  wound  may 
be  shown  to  be  in  a  different  part  of  the  body  than  that  laid  in  the  indictment.  State 
V.  Waller,  88  Mo.  402. 

'^  State  V.  Schpcnwald,  31  Mo.  147  ;  Maher  v.  People,  10  Mich.  212,  Every  killing  is 
presumed  to  be  malicious.  State  v.  Johnson,  3  Jones's  Law,  266  ;  Green  v.  State,  28 
Miss  687  ;  Atkins  v.  State,  16  Ark.  568  ;  Commonwealth  v.  Fox,  8  Gray,  585.  [Prenit 
V.  People,  5  Neb.  377.]  Though  malice  is  not  presumed  merely  from  the  fact  of  kill- 
ing, yet  the  circumstances  attending  the  homicide  may  be  such  that  the  law  deems  it 
malicious.  United  States  v.  Armstrong,  2  Curt.  C.  C.  446 ;  United  States  v.  Mingo, 
Id.  1 ;  Commonwealth  v.  Hawkins,  3  Gray,  463.  [The  inference  is  one  of  fact  only 
and  for  the  jury.  It  is  error  for  tlie  court  to  instruct  the  jury  that  it  throws  the  burden 
on  the  prisoner  to  reduce  the  offence  to  a  grade  below  min-der.  Perry  v.  State,  44 
Tex.  473  ;  Murray  v.  State,  1  Tex.  App.  417.]  A  blow  with  a  dangerous  weapon,  cal- 
culated to  produce  and  actually  producing  death,  if  struck  without  such  provocation 
as  reduces  the  crime  to  manslaughter,  is  deemed  by  law  malicious,  and  the  killing  is 
murder.  United  States  v.  McGlue,  1  Curt.  C.  C.  1.  [Moon  v  State,  68  Ga.  687.]  Any 
facts  may  be  shown,  in  a  trial  for  homicide,  that  tend  to  show  the  intent  with  which  it 
was  committed.  Austin  v.  State,  14  Ark.  555.  S.  Thus  evidence  of  a  quarrel  be- 
tween defendant  and  deceased  is  admissible,  but  the  details  are  not  admissible. 
McAnally  v.  State,  74  Ala.  9  ;  Garrett  v.  State,  76  Ala.  18 ;  Stewart  v.  State,  78  Ala. 
436. 

Evidence  of  eccentricities,  not  tending  to  prove  insanity,  but  introduced  to  show 
want  of  premeditation,  are  inadmissible.  Sindram  v.  People,  88  N.  Y.  196.  Premedi- 
tation is  sufficiently  shown  by  evidence  that  the  prisoner  formed  a  purpose,  annoimced 
his  intention  to  the  deceased,  and  carried  it  into  effect.  People  t;.  Kiernau,  4  N.  Y. 
Crim.  Eep.  88. 


MURDER.  955 

or  no  apparent  cause.  Id.  200.  Tlie  Sootcli  law  resembles  onr  own 
in  this  i)articular,  and  the  rule  is  well  laid  down  by  Baron  Plume. 
"Our  practice,"  he  says,  "does  not  disthiguish  between  an  absolute 
purpose  to  kill  and  a  purpose  to  do  any  excessive  and  grievous 
injury  to  the  person,  so  that  if  the  panel  assault  his  neighbor, 
meaning  to  hamstring  him  or  cut  out  his  tongue,  or  break  his 
bones,  or  beat  him  severely,  or  within  an  inch  of  his  life,  and  if, 
in  the  prosecution  of  this  outrageous  purpose,  he  has  actually  de- 
stroyed his  victim,  he  shall  equally  die  for  it,  as  if  he  had  run  him 
through  the  body  Avith  a  sword.  The  corrupt  disregard  of  the  per- 
son and  life  of  another  is  precisely  the  dole  or  malice,  the  depraved 
and  wicked  purpose,  which  the  law  requires  and  is  content  with."  2 
Hume,  254,  256. 

"  Where  it  appears  that  one  person's  death  has  been  occasioned  by 
the  hand  of  another,  it  behoves  that  other  to  show  from  evidence,  or 
by  inference  from  the  circumstances  of  the  case,  that  the  oifence  is  of 
a  mitigated  character,  and  does  not  amount  to  murder."  Per  Tindal, 
*C.  J.,  R.  i\  Greenacre,  8  C.  &  P.  35,  34  E.  C.  L.  Threats  r^^g. 
and  menaces  are  ordinary  evidence  of  malice.  1  Phil.  Ev.  514.  •-  ' 
And  see  ante,  p.  23. 

Proof  of  malice — death  ensuing  in  the  performance  of  an  un- 
lawful or  wanton  act.  The  rule  in  this  case  is  thus  laid  down  by 
Sir  Michael  Foster  :  If  an  action,  unlawful  in  itself,  be  done  delib- 
erately and  with  intention  of  mischief,  or  great  bodily  harm  to  par- 
ticulars, or  of  mischief  indiscriminately,  fall  it  where  it  may,  and 
death  ensue,  against  or  beside  the  original  intention  of  the  party,  it 
will  be  murder.^     But  if  such  mischievous  intention  do  not  appear 

^  Where  a  statute  distinguishes  murder  into  degrees  and  makes  capital  only  that 
which  is  committed  deliberately,  or  with  intent  to  kill,  it  matters  not  how  short  the 
deliberation  is.  Kilpatrick  v.  Commonwealth,  31  Pa.  St.  198;  People  v.  INIoore,  8 
Cal.  yO  ;  State  v.  McDonnell,  32  Vt.  491  ;  People  v.  Bealoba,  17  Cal.  389.  Homicide, 
with  intent  to  kill,  is  murder,  thougli  the  intent  be  formed  but  an  instant  before  strik- 
ing the  blow.  People  v.  Clark,  3  Seld.  385;  Witchum  v.  State,  11  Ga.  615;  State  v. 
Dunn,  18  Mo.  419  ;  State  v.  Jennings,  Id.  435  ;  Jordan  v.  State,  10  Tex.  479  ;  Donnelly 
V.  State,  2  Dutch.  403,  601 ;  Shoemaker  v.  State,  12  O.  43.  Under  the  statute  there 
must  be  a  "  premeditated  design  "  to  kill ;  and  it  is  not  a  premeditated  design,  if  the 
design  be  formed  at  the  instant  of  striking  the  fatal  blow.  Sullivan  v.  People,  1 
Parker,  C.  R.  347.  For  other  cases  upon  the  question  whether  an  instantaneous  in- 
tent to  kill  is  sufficient,  see  Keenan  v.  Commonwealth,  44  Pa.  St.  55 ;  Fonts  r.  State, 
4  Greene,  500;  Falinestock  i'.  State,  23  Ind.  231  ;  Lanergan  v.  People,  50  Barb.  266; 
Lewis  V.  State,  3  Head,  127 ;  Herrin  ?-.  State,  33  Tex.  638 ;  McAdams  v.  State,  25 
Ark.  405.  As  to  the  distinction  between  murder  in  the  first  and  second  degree  gener- 
ally, see  People  v.  Long,  39  Cal.  694 ;  Commonwealth  v.  Desmarteau,  82  IMass.  1 ; 
Coiton  V.  State,  32  Tex.  6i4;  State  v.  Sloan,  47  Mo.  604;  Green  v.  Commonwealth,  12 
Allen,  155  ;  Fitzgerald  v.  People,  37  N.  Y.  413  ;  State  v.  Millain,  3  Nev.  409  ;  Lesche  v. 
Territory,  1  Wash.  Terr.  23 ;  Commonwealth  v.  Drum,  58  Pa.  St.  9  ;  State  v.  Hoyt,  13 
Minn.  132  ;  State  r.  Newton,  4  Nev.  410  ;  Donnellan  v.  Commonwealth,  7  Bush,  676  ; 
Hill  V.  State,  41  Ga.  484 ;  Kriel  v.  Commonwealth,  6  Bush,  362 ;  State  v.  Pike,  49 
N.  H.  399 ;  State  v.  McCormick,  27  la.  402  ;  Clem  v.  State,  31  Ind.  480  ;  Murjihy  v. 
State,  Id.  511 ;  Bradley  r.  State,  Id.  492;  Wilt  v.  State,  6  Cold.  5;  Commonwealth  i-. 
Schoeppe,  1  Leg.  Gaz.Rep.  433  ;  Gladden  v.  State,  13  Fla.  623 ;  Dixon  v.  State,  Id.  636 ; 
Commonwealth  r.  Brauham,  8  Bush,  387  ;  Hall  v.  State,  40  Ala.  698 ;  Huling  v.  State, 
17  O.  St.  583;  Fitzgerald  v.  People,  49  Barb.  122  ;  People  v.  Sheehan,  Id.  217;  State 
V.  Starr,  38  Mo.  270  ;  Craft  w.  State,  3  Kan.  450 ;  People  v.  Foren,  25  Cal.  361 ;  Smith 


956  MURDER. 

(which  is  matter  of  fact  to  be  eoUectod  from  the  circumstances),  and 
the  act  Avas  clone  heedlessly  and  incautiously,  it  will  be  manslaughter, 
not  accidental  death,  because  the  act  which  ensued  was  unlawful. 
Foster,  201.  Thus,  where  an  injury  intended  to  be  inflicted  upon  A. 
by  poison,  blows,  or  other  means  of  death,  would,  had  he  sustained  it, 
have  been  murder  ;  it  will  amount  to  the  same  offence,  if  B.  by  acci- 
dent happens  to  lose  his  life  by  it.^  But,  on  the  other  hand,  if  the 
blow  intended  for  A.  arose  from  a  sudden  transport  of  fury,  which, 
in  case  A.  had  died  by  it,  would  have  reduced  the  offence  to  man- 
slaughter, the  fact  will  admit  of  the  same  alleviation,  if  B.  should 
happen  to  fall  by  the  blow.  Foster,  262.  1  Hale,  P.  C.  438.  See  R. 
V.  Hunt,  1  Moo.  C.  C.  93,  jiost,  tit.  "  Attempt  to  commit  IMurder." 

So  where  two  parties  meet  to  fight  a  deliberate  duel,  and  a  stranger 
come  to  part  them,  and  is  killed  by  one  of  them,  it  is  murder  in  the 
latter.  1  Hale,  P.  C.  441.  And  where  the  prisoner  intending  to 
poison  his  wife,  gave  her  a  poisoned  apple,  which  she,  ignorant  of  its 
nature,  gave  to  a  child,  who  took  it  and  died ;  this  was  held  murder 
in  the  husband,  although,  being  present,  he  endeavored  to  dissuade  his 
wife  from  giving  it  to  the  child.  R.  v.  Saunders,  Plowd.  474.  Such 
also  was  the  case  of  the  wife  who  mixed  ratsbane  in  a  potion  sent  by 
the  apothecary  to  her  husband,  which  did  not  kill  him,  but  killed  the 
apothecary,  who,  to  vindicate  his  reputation,  tasted  it  himself,  having 
first  stirred  it  about.  9  Co.  81  ;  Hawk.  P.  C.  b.  1,  c.  31,  s.  46.  So, 
in  a  recent  case,  where  the  prisoner,  intending  to  murder  A.,  shot  at 
and  wounded  B.,  supposing  him  to  be  A.,  it  was  held  that  he  was 
pro})crly  convicted  of  wounding  B.  with  intent  to  murder  him.  R.  v. 
Smith,  25  L.  J.,  M.  C.  29 ;  Dears.  C.  C.  559. 

It  is  said  that  whenever  death  is  caused,  even  unintentionally,  in 
the  commission  of  a  felony,  the  crime  is  murder ;  and  as  Foster  says 
(p.  258),  "A.  shooteth  at  the  poultry  of  B.  and  by  accident  killeth  a 
man,  if  his  intention  was  to  steal  the  poultry,  which  must  be  collected 
from  circumstances,  it  will  be  murder,  by  reason  of  the  felonious  in- 
tent ;  but  if  it  was  done  wantonly  and  without  that  intention,  it  will 
be  barely  manslaughter."  In  R.  i\  Horsey  (3  F.  &  F.  287),  a  man 
set  fire  to  a  stack,  and  a  person  sleeping  by  it  was  burnt  to  death. 
Bramwell,  B.,  in  summing  up,  adopted  tlie  rule  laid  down  by  Foster; 
but  he  suggested  to  the  jury  that  if  the  deceased  was  not  shown  to  be 

V.  Commonwealth,  1  Duv.  224  ;  People  v.  Vance,  21  Cal.  400 ;  Fonts  v.  State,  4  Greene, 
500;  People  v.  Eelencia,  21  Cal.  544;  People  v.  Sanchez,  24  Cal.  17  ;  Smith  v.  State, 
1  Kan.  3(35.     S.     State  v.  White,  30  La.  An.  364. 

Where,  as  under  tlie  Alabama  act,  any  wilful  homicide  is  declared  to  be  murder  in 
the  first  degree  without  regard  to  the  intent,  it  is  not  error  for  the  court  to  refuse  an 
instruction  on  the  degree.  Washington  v.  State,  GO  Ala.  10.  Under  the  Alabama 
code,  a  homicide  in  attempting  lo  commit  any  of  the  felonies  mentioned  in  the  code 
is  murder  in  the  first  degree  without  any  jiroof  of  malice.  Kilgore  r.  State,  74  Ala. 
1.  Malice  where  proved  requires  a  verdict  of  murder.  Jackson  v.  State,  74  Ala.  26. 
Where  malice  is  only  implied,  it  is  murder  in  the  second  degree.  Hart  v.  State,  21 
Tex.  App.  163. 

'  Clark  r.  State,  78  Ala.  474.  But  under  the  Texan  code,  where  one  man  is  mur- 
dered by  mistake  for  another,  it  is  only  murder  in  the  second  degree.  Musick  v. 
State,  21  Tex.  App.  69. 


MURDER.  957 

in  the  barn  at  the  time  when  the  prisoner  set  fire  to  tlie  stack  they 
might  acquit  him,  on  the  ground  that  the  man's  death  was  not  the 
natural  and  probable  consequence  of  this  act.  This,  however,  is  virtu- 
ally to  repeal  the  rule  laid  down  by  Foster.  It  is  very  doubtful 
whether  Foster's  view  of  the  law  would  be  taken  to  be  correct  at  the 
present  day.  See  R.  v.  Pombliton,  L.  R.  2  C.  0.  119 ;  43  L.  J.,  M.  C. 
91,  ante,  pp.  24,  722.  But  as  to  cases  of  intent  to  commit  an  offence, 
see  *ante,  p.  609.  The  prisoners  were  indicted  for  murder,  r^^^o 
The  deceased,  being  in  liquor,  had  gone  at  night  into  a  glass-  ^ 
house,  and  laid  himself  down  upon  a  chest.  While  there  asleep  the 
prisoners  covered  and  surrounded  him  with  straw,  and  threw  a  shovel 
of  hot  cinders  upon  his  belly,  the  consequences  of  which  was,  that  the 
straw  ignited,  and  he  was  burnt  to  death.  There  was  no  evidence  of 
express  malice  on  the  part  of  the  prisoners.  Patteson,  J.,  told  the 
jury  that  if  they  believed  the  prisoners  really  intended  to  do  any 
serious  injury  to  the  deceased,  although  not  to  kill  him,  it  was  murder ; 
but  if  they  believed  their  intention  to  have  been  only  to  frighten  him 
in  sport,  it  was  manslaughter.  The  prisoners  Avere  convicted  of  the 
latter  offence.  R.  v.  Errington,  2  Lew.  C.  C.  217.  As  to  intending 
the  consequences  of  an  act,  see  R.  v.  Faulkner,  13  Cox,  C.  C.  (Irish) 
550,  ante,  title  "  Arson,"  pp.  24,  296,  and  R.  v.  Martin,  8  Q.  B.  D. 
54 ;  51  L.  J.,  M.  C.  36,  ante,  p.  722. 

It  is  not  necessary,  in  order  to  render  the  killing  murder,  that  the 
unlawful  act  intended  would,  had  it  been  effected,  have  been  felony. 

Thus,  in  the  case  of  the  person  who  gave  medicine  to  a  woman  (1 
Hale,  P.  C.  429),  and  of  him  who  puts  skewers  into  a  woman's  womb, 
with  a  view  in  both  cases  to  procure  abortion,  whereby  the  women 
were  killed  ;  such  acts  were  clearly  held  murder,  though  the  original 
attempt,  had  it  succeeded,  would  only  have  been  a  great  misdemeanor ; 
for  the  acts  were  in  their  nature  malicious  and  deliberate,  and  neces- 
sarily attended  with  great  danger  to  the  persons  on  whom  they  were 
practised.  1  East,  P.  C.  230.  So  if  in  case  of  a  riot  or  quarrel, 
whether  sudden  or  premeditated,  a  justice  of  the  peace,  constable  or 
watchman,  or  even  a  private  person,  be  slain  in  endeavoring  to  keep 
the  peace  or  suppress  the  affray,  he  who  kills  him  is  guilty  of  murder ; 
for  notwithstanding  it  was  not  his  primary  intention  to  commit  a 
felony,  yet  inasmuch  as  he  persists  in  a  less  offence  with  so  much  ob- 
stinacy as  to  go  on  in  it,  to  the  hazard  of  the  lives  of  those  who  only 
do  their  duty,  he  is,  in  that  respect,  equally  criminal  as  if  his  inten- 
tion had  been  to  commit  felony.     Hawk.  P.  C.  b.  1,  c.  81,  s.  54. 

If  a  person  rides  a  horse  known  to  be  used  to  kick,  amongst  a  mul- 
titude of  people,  although  he  only  means  to  divert  himself,  and  death 
ensues  in  consequence,  he  will,  it  is  said,  be  guilty  of  murder.^  Hawk. 
P.  C.  b.  1,  c.  31,  s.  61  ;  1  Lord  Raym.  143 ;  Foster,  261  ;  1  East, 
P.  C.  231.  And  if  a  man,  knowing  that  the  people  are  passing  along 
the  street,  throw  a  stone  likely  to  create  danger,  or  shoot  over  the 

^  A  carriage  driver  who  sees  that  he  is  in  danger  of  running  over  a  little  child  and 
deliberately  drives  on,  although  at  a  moderate  pace,  is  guilty  of  murder,  if  the  child 
is  killed  in  consequence.    Lee  v.  State,  1  Cold.  02.    S. 


958  MURDER. 

house  or  wall,  with  intent  to  do  hurt  to  people,  and  some  one  is  con- 
sequently killed,  it  is  murder,  on  account  of  the  previous  malice, 
thouo;h  not  directed  against  any  particular  individual ;  for  it  is  no  ex- 
cuse that  the  party  was  bent  on  miscliief  generally.  See  per  lilack- 
burn,  J.,  in  li.  v.  Pembliton,  L.  11.  2  C.  C.  119  ;  43  L.  J.,  M.  C.  91. 
Ante,  pj>.  24,  722 ;  but  if  the  act  were  merely  done  incautiously,  it 
would  only  be  manslaughter.  1  East,  P.  C.  231 ;  1  Hale,  P.  C.  475. 
In  all  tliese  cases  the  nature  of  the  instrument  and  the  manner  of 
using  it,  as  calculated  to  produce  great  bodily  harm  or  not,  will 
vary  the  offence.  1  East,  P.  C.  257.  If  a  person  fires  at  another 
a  rifle,  knowing  it  to  be  loaded,  and  therefore  intending  to  kill  or 
to  do  grievous  bodily  harm,  it  is  murder,  but  if  he  did  not  know, 
then  no  such  presumption  of  intent  arises.  If  he  negligently  used 
*7fi'^l  ^^^  means  to  ascertain  whether  it  was  loaded  or  not,  *and  fired 
'  J  the  rifle  in  the  direction  of  any  other  person  and  death  ensue, 
he  would  be  guilty  of  manslaughter.  R.  v.  Campbell,  11  Cox,  C.  C 
323.     See  ante,  p.  731. 

The  rule  above  stated  must  be  taken  to  extend  only  to  such  acts 
as  are  mala  in  se  ;  for  if  the  act  be  merely  malum  prohibitum,  as  (for- 
merly) shooting  at  game  by  a  person  not  qualified  to  keep  a  gun  for 
that  purj^ose,  the  case  of  him  so  offending  will  fall  under  the  same 
rule  as  tliat  of  a  qualified  person.  The  mere  imposing  of  penalties 
will  not  in  a  case  of  this  kind  change  the  character  of  the  accident. 
Foster,  259.  So  if  one  throw  a  stone  at  another's  horse,  and  it  hit  a 
person  and  kill  him,  it  is  manslaughter  only.  1  East,  P.  C.  257 ;  1 
Hale,  P.  C.  39. 

Death  ensuing  in  consequence  of  a  trespass  committed  in  sport  will 
be  manslaughter.  The  prisoners  were  indicted  for  manslaughter,  in 
having  caused  the  death  of  a  man  by  throwing  stones  down  a  coal-pit. 
Tindal,  C.  J.,  in  addressing  the  jury  said,  if  death  ensue  in  conse- 
quence of  a  wrongful  act  which  the  party  who  commits  it  can  neither 
justify  nor  excuse,  it  is  not  accidental  death,  but  manslaughter.  If 
the  wrongful  act  was  done  under  circumstances  which  show  an  intent 
to  kill  or  do  any  serious  injury  in  the  particular  case,  or  any  general 
malice,  the  offence  becomes  that  of  murder.  In  the  present  instance 
the  act  was  one  of  mere  wantonness  and  sport,  but  still  the  act  was 
wrongful,  and  was  a  trespass.  R.  v.  Feuton,  1  Lewin,  C.  C.  179; 
see  further,  ante,  p.  725. 

The  Scotch  law  does  not  recognize  all  the  nice  distinctions  which 
exist  in  our  own  upon  this  head.  The  rule  in  that  country  is  stated 
to  be,  that  homicide,  although  not  originally  intended,  will  be  held 
to  be  murder,  when  it  takes  place  during  the  commission  or  in  the 
attempt  to  commit  a  capital  crime,  or  one  obviously  hazardous  to  life ; 
but  that  where  it  ensues  without  being  intended,  during  the  course 
of  an  inferior  delinquency,  and  from  which  no  peril  to  life  could  have 
been  reasonably  anticipated,  it  will  amount  to  culpable  homicide 
only.  Alison's  Princ.  Crim.  Law  of  Scotl.  52:  Perhaps  the  rule  with 
regard  to  implied  malice  has  been  carried,  in  the  English  practice,  to 
at  least  the  full  length  which  reason  and  justice  warrant. 


MURDEE.  959 

Wilful  neglect  of  duty.  Death  ensuing  In  consequence  of  the 
wilful  omission  of  a  duty  will  be  murder  ;  death  ensuing  in  conse- 
quence of  the  negligent  omission  of  a  duty  will  be  manslaughter. 
K  V.  Hughes,  Dears.  &  B.  C.  C.  248 ;  2G  L.  J.,  M.  C.  202.  In 
that  case  the  prisoner  was  a  brakesman  at  the  mouth  of  a  pit- 
shaft.  Building  materials  were  being  sent  into  the  pit,  and  it 
was  the  prisoner's  duty  to  place  a  stage  over  the  mouth  of  the  pit 
as  the  loaded  trucks  came  up,  from  which  the  materials  were 
lowered  into  the  pit.  The  prisoner  negligently  omitted  to  place 
the  stage  over  the  mouth  of  the  pit  as  one  of  the  trucks  came  up,  in 
consequence  of  which  it  fell  into  the  pit  and  killed  tiie  deceased. 
Lord  Campbell,  in  delivering  the  judgment  of  the  court  of  criminal 
appeal,  said,  "  If  the  prisoner,  of  malice  aforethought,  and  with  the 
premeditated  design  of  causing  the  death  of  the  deceased,  had  omitted 
to  place  the  stage  on  the  mouth  of  the  shaft,  and  the  death  of  the 
deceased  had  thereby  been  caused,  the  prisoner  would  have  been  guilty 
of  murder.  According  to  the  common  law  form  of  an  indictment  for 
murder  by  reason  of  the  omission  of  a  duty,  it  was  necessary  that  the 
indictment  should  allege  that  it  was  the  duty  of  the  prisoner  to  do 
*the  act,  or  to  state  facts  from  which  the  law  would  infer  this  r^MnA 
duty.  (R.  V.  Edwards,  8  C.  &  P.  611,  34  E.  C.  L.;  R.  v.  God-  L  ^^^ 
win,  1  Russ.  Cri.  834,  5th  ed.)  But  it  has  never  been  doubted  that 
if  death  is  the  direct  consequence  of  the  malicious  omission  to  perform 
a  duty,  as  of  a  mother  to  nourish  her  infant  child,  this  is  a  case  of 
murder.  If  the  omission  was  not  malicious,  and  arose  from  negligence 
only,  it  is  a  case  of  manslaughter. 

Proof  of  malice — neglect  and  ill-treatment  of  infants  and  others. 
Amongst  the  modes  of  killing  mentioned  by  Lord  Hale,  are  the  ex- 
posing a  sick  or  weak  person  or  infant  to  the  cold,  with  the  intent 
to  destroy  him,  and  laying  an  impotent  person  abroad,  so  that  he 
may  be  exposed  to  and  receive  mortal  harm,  as  laying  an  infant  in 
an  orchard,  and  covering  it  with  leaves,  whereby  a  kite  strikes  it  and 
kills  it.  1  Hale,  P.  C.  431,  432.  In  these  cases  the  offence  may 
amount  to  wilful  murder,  under  the  rule  that  he  who  wilfully  and 
deliberately  does  any  act  which  apparently  endangers  another's  life, 
and  thereby  occasions  his  death,  shall,  unless  he  clearly  prove  the 
contrary,  be  adjudged  to  kill  him  of  malice  prepense.  1  East,  P.  C. 
225.  Such  was  the  case  of  the  man  who  carried  his  sick  father  against 
his  will,  in  a  severe  season,  from  town  to  town,  by  reason  whereof  he 
died.^  Hawk.  P.  C.  b.  1,  c.  31,  s.  5 ;  2  East,  P.  C.  225.  See  R.  v. 
Stockdale,  2  Lew.  C.  C.  220.  See  as  to  exposing  infants,  etc.,  ante, 
p.  398 ;  as  to  apprentices,  servants,  and  lunatics,  ante,  p.  635. 

^  Where  a  seaman  is  in  a  state  of  debility,  and  the  master  knowingly  and  mali- 
ciously compels  him  to  go  aloft,  and  he  falls  into  the  sea,  and  is  drowned,  it  is  mur- 
der. If  there  be  no  malice,  it  is  manslaughter.  United  States  v.  Freeman,  4  Mason, 
505.     Cruelty  to  a  child  producing  death.     State  c.  Harris,  63  N.  C.  1 .     S. 

In  an  indictment  for  murder  evidence  is  admissible,  that  the  deceased  complained 
to  a  magistrate,  ten  months  before  her  death,  that  her  husband,  the  defendant,  neglected 
to  support  her,  to  show  malice.     People  v.  Otto,  4  N.  Y.  Crim.  Kep.  149. 


960  MUEDER. 

Cases  of  this  kind  have  arisen,  where  apprentices  or  prisoners  have 
died  in  consequence  of  the  want  of  sufficient  food  and  nccrcssaries, 
and  where  the  question  has  been  whetlier  the  law  Avould  imply  such 
malt(«  in  the  master  or  gaoler,  as  is  necessary  to  make  the  offence 
murder.  The  prisoner,  Charles  Squire,  and  his  wife  were  both 
indicted  for  the  murder  of  a  parish  apprentice,  bound  to  the  former. 
]joth  the  prisoners  had  used  the  deceased  in  a  most  cruel  and  bar- 
barous manner,  and  had  not  provided  him  with  sufficient  food  and 
nourishment ;  but  the  surgeon  who  opened  the  body  deposed  that,  in 
his  opinion,  the  boy  died  from  debility  and  for  want  of  proper  food 
and  nourishment,  and  not  from  the  wounds  he  had  received.  Law- 
rence, J.,  upon  this  evidence,  was  of  opinion  that  the  case  was  defec- 
tive as  to  the  wife,  as  it  was  not  her  duty  to  provide  the  apprentice 
with  food,  she  being  the  servant  of  her  husband,  and  so  directed  the 
jury,  Avho  acquitted  her ;  but  the  husband  was  found  guilty  and 
executed.  R.  v.  Squire,  1  Russ.  Cri.  653,  5th  ed.  The  not  supplying 
an  apprentice  with  sufficient  food  is  an  indictable  misdemeanor.  R.  v. 
Friend,  Russ.  &  Ry.  20.  As  to  what  is  sufficient  proof  of  the  appren- 
ticeship, see  R.  V.  Plummer,  Carr.  &  M.  597,  41  E.  C.  L. 

Where  a  married  woman  was  charged  with  the  murder  of  her  ille- 
gitimate child,  three  years  old,  by  omitting  to  supply  it  with  proper 
food,  Alderson,  B.,  held  that  she  could  not  be  convicted  unless  it  was 
shown  that  her  husband  supplied  her  with  food  to  give  to  the  child, 
and  that  she  wilfully  neglected  to  give  it.  The  learned  judge  said, 
"  There  is  no  distinction  between  the  case  of  an  apprentice  and  that 
of  a  bastard  child,  and  the  wife  is  only  the  servant  of  the  husband, 
and  according  to  the  case  before  Mr.  Justice  Lawrence  (R.  v. 
Squire,  supra),  can  only  be  made  criminally  responsible  by  omit- 
ting to  deliver  the  food  to  the  child,  with  which  she  had  been 
supplied  by  her  husband."  R.  v.  Saunders,  7  C.  &  P.  277,  32  E.  C. 
L.  But  in  the  case  of  an  infant,  the  mother  would  be  liable  if  the 
5^-^  _-,    *death  arose  from  her  not  suckling  the  child  when  she  was  capa- 

^^^-1  ble  of  doing  so.  Per  Patteson,  J.,  R.  v.  Edwards,  8  C.  &  P.  611, 
34  E.  C.  L.  In  such  a  case  the  indictment  must  state  that  it  was  the 
duty  of  the  prisoner  to  supply  the  child  with  food,  otherwise  it  will 
be  bad.     Id. 

The  prisoner,  an  unmarried  woman,  left  Worcester  in  a  stage- 
wagon,  and  was  in  the  wagon  about  ten  at  night  at  the  Wellington 
Inn  on  the  Malvern  Hills.  She  must  have  subsequently  left  the 
wagon,  as  she  overtook  it  at  Ledbury.  It  appeared  that  she  had 
been  delivered  of  a  child  at  the  road-side,  between  the  Wellington 
Inn  and  Ledbury,  and  had  carried  it  about  a  mile  to  the  place  where 
it  was  found,  which  was  also  at  the  road-side.  The  road  was  much 
frequented,  and  two  wagon  teams  and  several  persons  were  on  it 
about  the  time  when  the  child  was  left.  A  wagoner,  who  was 
passing  along  the  road,  heard  the  child  cry,  but  went  on  without 
rendering  it  any  assistance.  Having  told  some  other  persons,  they 
proceeded  to  the  spot  and  found  the  child,  which  was  quite  naked, 
dead    from   cold    and   exhaustion.      It   further    appeared,  that  the 


MURDER.  961 

prisoner  had  arranged  with  a  woman  to  be  confined  at  her  house, 
and  to  pay  her  3s.  Gd.  a  Aveek  for  taking  care  of  the  child.     Coltman, 
J.,  in  summing  up  to  the  Jury,  said,  "  Suppose  a  person  leaves  a  child 
at  the  door  of  a  gentleman,  where  it  is  likely  to  be  taken   into  the 
house  almost  immediately,  it  would  be  too  much  to  say,  that  if  death 
ensued  it  would  be  murder ;  the  probability  there  Avould   be  so  great, 
almost  amounting  to  a  certainty,  that  the  child  would  be  found  and 
taken  care  of.     If,  on  the  other  hand,  it  were  left  on  an  unfrequented 
place,  a  barren  heath,   for  instance,  what  inference  could  be  drawn 
but  that  the  party  left  it  there  in  order  that  it  might  die.     This  is  a 
sort  of  intermediate  case,  because  the  child  is  exposed  on  a  j)ublic 
road  where  persons  not  only  might  pass,  but  were  passing  at  the  time, 
and  you  will  therefore  consider  whether  the  prisoner  had  reasonable 
ground  for  believing  that  the  child  would  be  found  and  preserved." 
11.  V.  Walters,  Carr.  &  M.  164.     See  also  R.  v.  Waters,  1  Den.  C.  C. 
R.  356  ;  18  L.  J.,  M.  C.  53,  ante,  p.  736.    The  prisoner  Avas  indicted 
for  the  murder,  and  was  also  charged  on  the  coroner's  inquisition  with 
the  manslaughter  of  Sarah  Jane  Cheeseman,  by  beating  her,  and  com- 
pelling her  to  work  for  unreasonable  hours  and  beyond  her  strength. 
The  prisoner  was  aunt  to  the  deceased,  who  was  about  fifteen,  and 
with  her  sister,  who  was  two  or  three  years  younger,  their  mother 
being  dead,  had  been  placed  under  the  prisoner's  care.     The  prisoner 
employed  them  both  in  stay-stitching  for  fourteen  and  sometimes 
fifteen  hours  a  day,  and  when  they  did  not  do  the  required  quantity 
of  work,  severely  punished  them  with  the  cane  and  the  rod.     The 
deceased  was  in  ill-health,  and  did  not  do   so  much  work  as  her 
younger   sister,   and   in   consequence  was   much   oftener   and    more 
cruelly  punished  by  the  prisoner,  who  accompanied  her  corrections 
by  the  use  of  very  violent  and  threatening  language.     The  surgeon 
who  examined  the  deceased  stated  before  the  coroner,  that,  in  his 
opinion,  she  died  from  consumption,  but  that  her  death  was  hastened 
by  the  treatment  she  was  said  to  have  received.     It  appeared  that  the 
prisoner,  when  she  beat  the  deceased  for  not  doing  her  work,  always 
said  she  was  sure  that  she  was  acting  the  hypocrite,  and  shamming  ill- 
ness, and  that  she  had  a  very  strong  constitution.     The  prisoner  hav- 
ing pleaded  guilty  to  the  charge  of  manslaughter,  the  counsel  for  the 
prosecution  declined  to  offer  any  evidence  upon  the  charge  of  murder, 
thinking  there  was  not  proof  of  malice  sufficient  to  constitute  that 
*offence,  in  which  opinion  Vaughan,  B.,  concurred.  R.  v.  Cheese-   r:k^nn 
man,  7  C.  &  P.  455,  32  E.  C.  L.  L  ^'^^ 

Huggins,  the  warden  of  the  Fleet,  appointed  Gibbons  his  deputy, 
and  Gibbons  had  a  servant,  Barnes,  whose  duty  it  was  to  take  care 
of  the  prisoners,  and  particularly  of  one  Arne.  Barnes  put  him  into 
a  newly-built  room,  over  a  common  sewer,  the  walls  of  which  were 
damp  and  unwholesome,  and  kept  him  there  forty-four  days  without 
fire,  chamber-pot,  or  other  convenience.  Barnes  knew  the  state  of 
the  room,  and  for  fifteen  days  at  least  before  the  death  of  Arne, 
Huggins  knew  its  condition,  having  been  once  present,  seen  Arne, 
and  turned  away.  By  reason  of  the  duress  of  imprisonment,  Arne 
61 


962  MURDER. 

sickened  and  died.  During  the  time  Gibbons  was  deputy,  Huggins 
sometimes  acted  as  warden.  These  facts  appearing  on  a  special 
verdict,  the  court  were  clearly  of  opinion  that  Barnes  was  guilty  of 
murder.  They  were  deliberate  acts  of  cruelty,  and  enormous  viola- 
tions of  the  trust  reposed  by  the  law  in  its  ministers  of  justice  ;  but  they 
thought  Huggins  not  guilty.  It  could  not  be  inferred  from  the  bare 
seeing  the  deceased  once  during  his  confinement,  that  Huggins  knew 
his  situation  was  occasioned  by  improper  treatment,  or  that  he  consented 
to  the  continuance  of  it.  They  said  it  was  material  that  the  species  of 
duress  by  which  the  deceased  came  by  his  death  could  not  be  known 
by  a  bare  looking  in  upon  him.  Huggins  could  not  know  the 
circumstances  under  which  he  was  placed  in  the  room  against  his  con- 
sent, or  the  length  of  his  confinement,  or  how  long  he  had  been  without 
the  decent  necessaries  of  life ;  and  it  was  likewise  material  that  no 
application  had  been  made  to  him,  which,  perhaps,  might  have  altered 
the  case.  Besides  the  verdict  found  that  Barnes  was  the  servant  of 
Gibbons,  and  Gibbons  had  the  actual  management  of  the  prison,  and 
the  judges  seemed  to  think  that  the  accidental  presence  of  the  princi- 
pal would  not  amount  to  a  revocation  of  the  deputy's  authority. 
R.  V.  Huggins,  2  Str.  882;  Foster,  322;  1  East,  P.  C.  331.  So 
where  a  gaoler,  knowing  that  a  prisoner,  infected  with  the  smallpox, 
lodged  in  a  certain  room  in  the  prison,  confined  another  prisoner, 
against  his  will,  in  the  same  room,  and  the  latter  prisoner,  who  had 
not  had  the  distemper  (of  which  the  gaoler  had  notice),  caught  it,  and 
died  of  it,  it  was  held  to  be  murder  in  the  gaoler.  Castell  v.  Bam- 
bridge,  2  Str.  854;  Foster,  322  ;  1  East,  P.  C.  331. 

But  where  the  death  ensues  from  incautious  neglect,  however 
culpable,  rather  than  from  any  actual  malice  or  artful  disposition  to 
injure,  or  obstinate  perseverance  in  doing  an  act  necessarily  attended 
with  danger,  regardless  of  its  consequences,  the  severity  of  the  law, 
says  Mr.  East,  may  admit  of  some  relaxation,  but  the  case  must  be 
strictly  freed  from  the  latter  incidents.  1  East,  P.  C.  226.  An  ap- 
prentice returned  from  Bridewell,  whither  he  had  been  sent  for  bad 
behavior,  in  a  lousy  and  distempered  condition,  and  his  master  did 
not  take  the  care  of  him  which  his  situation  required,  and  which  he 
might  have  done.  The  apprentice  was  not  suffered  to  lie  in  a  bed, 
on  account  of  the  vermin,  but  was  made  to  lie  on  boards  without  any 
covering,  and  no  medical  aid  was  procured.  The  boy  dying,  the 
master  was  indicted  for  wilful  murder,  and  the  medical  men  who 
were  examined  were  of  opinion  that  his  death  was  most  probably 
occasioned  by  his  previous  ill-treatment  in  Bridewell,  and  the  want 
of  care  when  he  went  home.  And  they  were  inclined  to  think  that 
had  he  been  properly  treated  when  he  came  home,  he  might  have 
recovered.  There  was  no  evidence  of  personal  violence  or  want  of 
*7fi7T  **'i^fficient  sustenance.  The  recorder  left  it  to  the  jury  to  con- 
-■  sider  whether  the  death  was  occasioned  by  ill-treatment  of  the 
prisoner,  and  if  so,  whether  the  ill-treatment  amounted  to  evidence  of 
malice,  in  which  case  it  would  be  murder.  At  the  same  time  they 
were  told,  with  the  concurrence  of  Mr.  Justice  Gould  and  Mr.  Baron 


MUEDER.  963 

Hotham,  that  if  they  thought  otherwise,  yet  as  it  appeared  that  the 
prisoner's  conduct  towards  the  apprentice  was  highly  blameable  and 
improper,  they  might,  under  all  these  cinnuiistances,  find  him  guilty 
of  manslaughter,  which  they  accordingly  did,  and  the  judges  after- 
wards approved  of  the  conviction.  11.  v.  Self,  1  East,  P.  C.  226 ;  1 
Russ.  on  Cri.  777,  5th  ed. 

The  deceased,  Mrs.  AVarner,  was  about  seventy-four  years  of  age, 
and  lived  with  a  sister  until  the  death  of  the  latter,  in  March,  1837. 
The  prisoner  attended  the  funeral  of  the  sister,  and  after  it  was  over, 
stated  that  the  deceased  was  going  to  live  with  him  until  affairs  were 
settled,  and  that  he  would  make  her  happy  and  comfortable.     Other 
evidence  was  given  to  show  that  the  prisoner  had  interfered  in  her 
affairs,  and  had  undertaken  to  provide  her  wath  food  and  necessaries 
as  long  as  she  lived.     It  appeared  that,  after  July,  no  servant  was 
kept,  but  the  deceased  was  waited  upon  by  the  prisoner  and  his  wife. 
The  kitchen  in  which  the  deceased  lived  had  a  large  window,  through 
which  persons  in  the  court  could  see  plainly  what  was  passing  within, 
and  could  converse  with  the  inmates  of  it.     Several  witnesses  swore 
that,  after   the   servant  left,  the  deceased  remained    locked  in  the 
kitchen  alone,  sometimes  by  the  prisoner  and   sometimes  by  his  wife, 
for  hours  together,  and  that  on  several  occasions  she  complained  of 
being  confined,  and  cried  to  be  let  out.     They  also  stated,  that  in  cold 
weather  they  were  not  able  to  discern  any  fire  in  the  kitchen,  and  it 
appeared  that  for  some  time  before  the  deceased's  death,  she  was  not 
out  of  the  kitchen  at  all,  but  was  kept  continually  locked  in  there. 
The  prisoner's  wufe  was  the  only  person  who  w^as  with  the  deceased 
about  the  time  of  her  death,  which  happened  in  February,  1838.    An 
undertaker's  man,  who  was  called  in  very  soon  after,  stated,  that  from 
the  appearance  of  the  body  he  thought  she  had  died  from  want  and 
starvation.     A  medical  witness  said,  that  there  was  great  emaciation 
of  the  body,  and  the  stomach  and  bowels  were  empty  and  collapsed, 
but  that  the  immediate  cause  of  death  was  water  on  the  brain,  which 
he  seemed  to  think  might  be  caused  by  want  of  food.     In  summing 
up  to  the  jury,  Patteson,  J.,  said,  "  If  the  prisoner  was  guilty  of  wil- 
ful neglect,  so  gross  and  wilful  that  you  are  satisfied  he  must  have  con- 
templated the  death  of  Mrs.   Warner,  then  he  will  be  guilty  of  mur- 
der. If,  however,  you  think  only  that  he  was  so  careless,  that  her  death 
was  occasioned  by  his  negligence,  though  he  did  not  contemplate  it,  he 
will  be  guilty  of  manslaughter.     The  cases  which  happen  of  this  de- 
scription have  been  generally  cases  of  children  and  servants,  where  the 
duty  has  been  apparent.     This  is  not  such  a  case ;  but  it  will  be  for 
you  to  say  whether,  from  the  way  in  which  the  prisoner  treated  her, 
he  had  not  by  way  of  contract,  in  some  way  or  other,  taken  upon  him 
the  performance  of  that  duty,  which  she,  from  age  and  infirmity,  was 
incapable  of  doing."     After  referring  to  the  statements  of  some  of 
the  witnesses,  the  learned  judge  continued  :     "  This  is  the  evidence 
on  which  yon  are  called  on  to  infer  that  the  prisoner  undertook  to 
provide  the  deceased  with  necessaries ;  and  though,  if  he  broke  that 
contract,  he  might  not  be  liable  to  be  indicted  during  her  life,  yet 


964  MURDER. 

*7r<^1  *^^  ^y  '^'^  negligencG  her  death  was  occasioned,  then  he  be- 
J  comes  criminally  responsible."  The  prisoner  was  found  guilty 
of  manslaughter.  R.  v.  Marriott,  8  C.  &  P.  425,  34  E.  C.  L.  As 
to  the  duty  of  a  husband  to  supply  his  wife  with  shelter,  see  R.  v. 
Plumraer,  1  C.  &  K.  600,  47  E.  C.  L. 

A  young  woman  who  was  eighteen  years  of  age,  and  unmarried, 
and  who  usually  supported  herself  by  her  own  labor,  being  pregnant, 
and  about  to  be  confined,  returned  to  the  house  of  her  step-father  and 
her  mother.  The  girl  was  taken  in  labor  in  the  absence  of  the  step- 
father, and  in  the  presence  of  her  mother.  The  mother  did  not  take 
any  steps  to  procure  the  assistance  of  a  midwife,  although  she  could 
have  got  one  had  she  chosen,  and  the  daughter  died  in  her  confine- 
ment from  the  want  of  such  assistance.  Held,  that  there  was  no  such 
breach  of  duty  by  the  mother  as  to  render  her  criminally  liable  for 
the  death  of  her  daughter.     R.  v.  Shepherd,  31  L.  J.,  M.  C.  102. 

Proof  of  malice — death  caused  by  negligence.  Where  death  is 
occasioned  by  the  hand  of  a  party  engaged  in  the  performance  of  an 
act  otherwise  lawful,  it  may  by  reason  of  negligence  amount  to  man- 
slaughter, or  perhaps  even  to  murder,  according  to  the  circumstances 
by  which  it  is  accompanied.  The  most  usual  illustration  of  this  doc- 
trine is  the  instance  of  workmen  throwing  stones  and  rubbish  from  a 
house  in  the  ordinary  course  of  their  business,  by  which  a  person  un- 
derneath happens  to  be  killed.  If  they  deliberately  saw  the  danger, 
or  betrayed  any  consciousness  of  it,  whence  a  general  malignity  of 
heart  might  be  inferred,  and  yet  gave  no  warning,  it  will  be  murder, 
on  account  of  the  gross  impropriety  of  the  act.  If  they  did  not  look 
out,  or  not  till  it  was  too  late,  and  there  was  even  a  small  proba- 
bility of  persons  passing  by,  it  will  be  manslaughter.  But  if  it  had 
been  in  a  retired  place,  where  there  was  no  probability  of  persons 
passing  by,  and  none  had  been  seen  about  the  spot  before,  it  seems 
to  be  no  more  than  accidental  death.  For  though  the  act  itself  might 
breed  danger,  yet  the  degree  of  caution  requisite  being  only  in  pro- 
portion to  the  apparent  necessity  of  it,  and  there  being  no  apparent 
call  for  it  in  the  instance  put,  the  rule  applies  de  non  existentibus  et 
non  apparentibus  eadem  est  ratio.  So  if  any  person  had  been  before 
seen  on  the  spot,  but  due  warning  were  given,  it  will  be  only  misad- 
venture. On  the  other  hand,  in  London  and  other  populous  towns, 
at  a  time  of  day  when  the  streets  are  usually  thronged,  it  would  be 
manslaughter,  notwithstanding  the  ordinary  caution  used  on  other 
occasions  of  giving  warning ;  for  in  the  hurry  and  noise  of  a  crowded 
street,  few  persons  hear  the  warning,  or  sufficiently  attend  to  it,  how- 
ever loud.  1  East,  P.  C.  262  ;  Foster,  262;  1  Hale,  P.  C.  472 ;  4 
Bl.  Com.  192. 

Cases  of  negligent  driving  fall  under  the  same  consideration,  and  if 
death  ensue  it  will  be  murder,  manslaughter,  or  misadventure,  ac- 
cording to  the  caution  exercised,  and  with  reference  to  the  place 
where  the  injury  occurred.  It  has  been  already  stated  that  under 
circumstances  indicating  a  wanton  and  malicious  disregard  of  human 


MUEDER.  965 

life,  the  offence  may  amount  even  to  murder.  If  there  be  negligence 
only  in  the  driver  it  will  be  manslaughter,  and  if  negligence  be  ab- 
sent it  will  amount  to  misadventure  merely.  If  A.  drives  his 
cart  carelessly,  and  it  runs  over  a  child  in  the  street,  if  A.  saw  the 
child,  and  yet  drove  upon  it,  it  is  murder;  if  he  did  not  see  the 
""child,  it  is  manslaughter;  if  the  child  ran  across  the  way,  and  r*7(oq 
it  was  impossible  to  stop  the  cart  before  it  ran  over  the  child,  it  '- 
is  homicide  per  wfortimium.  1  Hale,  P.  C.  476  ;  Foster,  263.  So  if 
a  boy,  riding  in  a  street,  puts  his  horse  to  full  speed  and  runs  over 
a  child  and  kills  him,  this  is  manslaughter,  and  not  per  infortunium; 
and  if  he  rides  into  a  press  of  people  with  intent  to  do  hurt,  and  the 
horse  kills  one  of  them,  it  is  murder  in  the  rider.  1  Hale,  P.  C. 
476. 

Correction  of  child  by  parents  and  others.  Parents,  masters,  and 
other  persons  having  authority  in  foro  domestico,  may  administer 
reasonable  correction  to  those  under  their  care,  and  if  death  ensue 
without  their  fault,  it  will  be  no  more  than  accidental  death.  But 
if  the  correction  exceed  the  bounds  of  moderation,  either  in  the 
measure  or  in  the  instrument  made  use  of  for  the  purpose,  it 
will  be  either  murder  or  manslaughter,  according  to  the  circum- 
stances of  the  case.  Foster,  262.  Thus,  where  a  master  struck 
a  child,  who  was  his  apprentice,  with  a  great  staff,  of  which  he  died, 
it  was  ruled  to  be  murder.  1  Hale,  P.  C.  474.  And  where  a  father 
struck  a  child  two  years  and  a  half  old  with  a  strap  one  inch  wide, 
and  the  child  died,  it  was  ruled  to  be  manslaughter.  R.  v.  Griffin, 
11  Cox,  C.  C.  402.  Speaking  of  homicides  of  this  class,  Mr.  Justice 
Foster  says,  if  they  be  done  with  a  cudgel  or  other  thing  not  likely 
to  kill,  though  improper  for  the  purpose  of  correction,  it  will  be 
manslaughter ;  if  with  a  dangerous  weapon  likely  to  kill  or  maim,  it 
will  be  murder ;  due  regard  being  had  to  the  age  and  strength  of  the 
party.  Foster,  262.  Thus  where  a  master  directed  his  apprentice  to 
do  some  work  in  his  absence,  and  on  his  return,  finding  it  had  been 
neglected,  threatened  to  send  the  apprentice  to  Bridewell,  to  which 
he  replied,  "  I  may  as  well  work  there  as  with  such  a  master,"  upon 
which  the  master,  striking  him  on  the  head  with  a  bar  of  iron,  Avhich 
he  had  in  his  hand,  killed  him,  it  was  held  murder ;  for  if  a  father, 
master  or  schoolmaster,  correct  his  child,  servant  or  scholar,  it  must 
be  with  such  things  as  are  fit  for  correction,  and  not  with  such  instru- 
ments as  may  kill  them  ;  and  a  bar  of  iron  is  not  an  instrument  of 
correction.  R.  v.  Gray,  Kel.  64  ;  1  Russ.  Cri.  773,  5th  ed.  Though 
the  correction  exceeds  the  bounds  of  moderation,  yet  the  court  will 
pay  regard  to  the  nature  of  the  provocation,  where  the  act  is  mani- 
festly accompanied  with  a  good  intent,  and  the  instrument  is  not 
such  as  will,  in  all  probability,  occasion  death,  though  the  party  be 
hurried  to  great  excess.  A  father  whose  son  had  been  frequently 
guilty  of  thefts,  of  which  complaints  had  been  made,  had  often  cor- 
rected him.  At  length  the  son,  being  charged  with  another  theft, 
and  resolutely  denying  it,  though  proved  against  him,  the  father  in 


966  MURDER. 

a  passion  beat  his  son,  by  way  of  chastisement,  with  a  rope,  by  reason 
of  wliich  he  died.  The  father  expressed  the  utmost  horror,  and  was 
in  the  greatest  affliction  for  what  he  had  done,  intending  only  to  have 
punished  him  with  such  severity  as  to  have  cured  him  of  his  wicked- 
ness. The  learned  judge  who  tried  the  prisoner,  after  consulting  his 
colleague  and  the  principal  counsel  on  the  circuit,  ruled  this  to  be 
manslaughter  only.     Anon.     1  East,  P.  C.  261. 

Dangerous  assaults.  If  a  man  assault  another  with  intent  to  do 
him  bodily  injury,  and  death  ensue,  malice  sufficient  to  constitute 
murder  will  be  presumed,  provided  the  act  be  of  such  a  nature  as 
^_-^-,  *plainly,  and  in  the  ordinary  course  of  events,  must  put  the  life 
-I  of  the  party  in  danger.  4  Bl.  Com.  200.  A  remarkable  case, 
which  may  be  classed  under  this  head,  is  mentioned  by  Mr.  Alison. 
The  deceased,  a  chimney-sweeper's  boy,  of  eleven  years  of  age,  stuck 
fast  in  a  chimney.  The  prisoner  having  fastened  ropes  round  the  leg 
of  the  deceased,  drew  them  with  such  force,  that,  notwithstanding  his 
cries,  and  the  remonstrances  of  those  present,  the  boy  died.  Being 
charged  with  this  as  murder,  the  presiding  judge.  Lord  Justice  Clerk, 
with  the  concurrence  of  the  court,  laid  it  down  as  clear  law,  that  this 
was  an  instance  of  absolute  recklessness,  and  utter  indifference  about 
the  life  of  the  sufferer,  and  that  the  law  knew  no  difference  between 
the  guilt  of  such  a  case  and  that  of  an  intention  to  destroy.  R.  v.  Rae, 
Alison's  Prin.  Cr.  Law  of  Scot.  4. 

Proof  of  malice — provocation  in  general.  It  frequently  becomes 
a  most  important  question  in  the  proof  of  malice,  whether  the  act 
was  done  under  the  sudden  influence  of  such  a  degree  of  provocation 
as  to  reduce  the  crime  from  murder  to  manslaughter.^     The  indul- 

1  People  V.  Freeland,  6  Cal.  96 ;  State  v.  Curry,  1  Jones's  Law,  280;  Eay  v.  State, 
15  Ga.  535 ;  Hawkins  v.  State,  25  Id.  207.  As  to  when  the  character  of  the  deceased 
mav  be  given  in  evidence,  see  State  v.  Floyd,  6  Jones's  Law,  392 ;  Hindi  v.  State,  25 
Ga.  699  ;  Commonwealth  v.  Hilliard,  2  Gray,  294 ;  Franklin  v.  State,  29  Ala.  14  ;  State 
V.  Jackson,  12  La.  An.  679 ;  State  v.  Hicks,  "27  Mo.  588  ;  Dukes  v.  State,  11  Ind.  557  ; 
Pfomer  v.  People,  4  Parker,  C.  E.  558 ;  State  v.  Hogue,  6  Jones's  Law,  381 ;  State  v. 
Smith,  12  Rich.  Law,  430;  People  v.  Murray,  10  Cal.  309;  Wise  r.  State,  2  Kan.  419; 
Ben  I'.  State,  Shep.  Sel.  Cas.  9 ;  s.  c.  37  Ala.  103 ;  Pound  v.  State,  43  Ga.  88  ;  Chase  v.  State, 
46  Miss.  683  ;  People  v.  Anderson,  39  Cal.  703.  S.  State  v.  Matthews,  78  N.  C.  523 ; 
State  V.  Riddle,  20  Kan.  711 ;  Eiland  v.  State,  54  Ala.  322  ;  Brunei  v.  State,  12  Tex. 
App.  521. 

The  character  of  the  deceased  cannot  be  shown  by  particular  facts.  Campbell  v. 
State,  38  Ark.  498 ;  Thomas  v.  People,  67  N.  Y.  218.  The  character  of  the  deceased 
is  irrelevant  when  there  is  no  evidence  of  any  assault  on  his  part.  Abbott  v.  People, 
86  N.  Y.  400  ;  People  v.  Stock,  1  Idaho,  218  ;  State  v.  Clavis,  80  N.  C.  353 ;  Bowles  v. 
State,  58  Ala.  335. 

As  to  threats  made  bv  the  deceased  against  the  accused  and  reported  to  him.  Pow- 
ell r.  State,  52  Ala.  1 ;  State  v.  Dodson,  4  Ore.  64  ;  State  v.  Abbott,  8  W.  Va.  741  ; 
Palraore  v.  State,  29  Ark.  248.  Threats  of  deceased  are  not  admissible  until  it  has 
been  shown  that  tlie  prisoner  was  advised  of  them.  State  v.  McCoy,  29  La.  An.  593 ; 
State  V.  Turpin,  77  N.  C.  473  ;  State  v.  Fisher,  33  La.  An.  1344;  Combs  v.  State,  75 
Ind.  215;  State  ?'.  Ryan,  30  La.  An.  Pt.  1176.  As  to  evidence  of  threats  made  by 
deceased,  but  not  reported  to  prisoner,  tending  to  show  the  aninvis  of  deceased.  Rob- 
erts V.  State,  6S  Ala.  156;  Id.  515;  Johnson  v.  State,  54  Miss.  430;  State  v.  Elliott,  45 
la.  486 ;  State  v.  Alexander,  66  Mo.  148 ;  State  v.  Lee,  Id.  165 ;  State  v.  Turpin,  77  N. 


MURDER.  967 

gence  shown  to  the  first  transport  of  passion  in  these  cases,  says  Mr. 
Justice  Foster,  is  plainly  a  condescension  to  the  frailty  of  the  human 
frame,  to  the  furor  hrevis,  which,  while  the  frenzy  lasts,  renders  the 
man  deaf  to  the  voice  of  reason.  The  provocation,  therefore,  which 
extenuates  in  the  case  of  homicide  must  be  something  which  the  man 
is  conscious  of,  which  he  feels  and  resents  at  the  instant  the  fact 
which  he  would  extenuate  is  committed,  not  wliat  time  or  accident 
may  afterwards  bring  to  light.  Foster,  315.  AVherever  death  ensues 
from  sudden  transport  of  passion  or  heat  of  blood,  if  upon  a  reason- 
able provocation,  and  without  malice,  or  if  upon  sudden  combat, 
it  will  be  manslaughter :  if  without  such  provocation,  or  if  the  l)lood 
has  had  reasonable  time  or  opportunity  to  cool,  or  there  be  evidence 
of  express  malice,  it  will  be  murder ;  for  in  no  instance  can  the 
party  killing  alleviate  his  case  by  referring  to  a  previous  provoca- 
tion, if  it  appear  by  any  means  that  he  acted  upon  express  malice. 
1  East,  P.  C  232.  Where  the  provocation  is  sought  by  the  pris- 
oner, it  cannot  furnish  any  defence  against  the  charge  of  murder. 
Thus,  where  A.  and  B.  have  fallen  out,  A.  says  he  will  not  strike, 
but  will  give  B.  a  pot  of  ale  to  touch  him,  on  which  B.  strikes,  and 
A.  kills  him,  this  is  murder.  1  East,  P.  C.  239.  A.  and  B.  having 
a  difference,  A.  bade  B.  take  a  pin  out  of  his  (A.'s)  sleeve,  intending 
thereby  to  take  an  occasion  to  strike  or  wound  B. :  B.  did  so  accord- 
ingly ;  on  which  A.  struck  him  a  blow  of  which  he  died.  It  was 
held  that  this  was  wilful  mui-der :  1,  because  it  was  no  provocation, 
since  it  was  done  with  the  consent  of  A. ;  and  2,  because  it  appeared 
to  be  a  malicious  and  deliberate  artifice  to  take  occasion  to  kill  B. 
1  Hale,  P.  C.  457. 

C.  473 ;  West  v.  State,  2  Tex.  App.  460 ;  People  v.  Travis,  56  Cal.  251 ;  Wigins  v. 
People,  93  U.  vS.  465;  State  v.  Elkins,  63  Mo.  159;  Little  v.  State,  6  Baxter, 
(Tcnn.)  491 ;  Davidson  v.  People,  4  Col.  145  ;  Stokes  v.  People,  53  N.  Y.  164  ;  Harri- 
son i\  State,  78  Ala.  5  ;  Green  v.  State,  69  Ala.  6.  Declarations  not  amounting  to 
threats  are  irrelevant.  Ter.  v.  Yarberry,  2  N.  M.  391.  Or  the  character  of  the  de- 
ceased for  honesty.  Plasters  v.  State,  1  Tex.  App.  673.  Where  there  is  proof  that 
the  prisoner  made  the  first  assault,  evidence  of  threats  and  character  of  the  deceased 
should  be  disregarded.  State  r.  McNeely,  34  La.  An.  1022  ;  Bond  v.  State,  21  Fla. 
738.  The  threats  must  be  accompanied  by  acts  endangering  life  or  limb.  People  v. 
Campbell,  59  Cal.  243 ;  Turpin  v.  State,  55  Md.  462 ;  Edwards  v.  State,  47  Miss.  581 ; 
State  V.  Jackson,  33  La.  An.  1087  ;  Thomas  v.  State,  11  Tex.  App.  315 ;  State  v.  Hall, 
9  Nev.  58 ;  State  v.  Ferguson,  Id.  106  ;  State  v.  Stewart,  Id.  120.  The  bill  of  excep- 
tions must  show  how  the  prisoner's  conduct  was  affected,  or  a  conviction  will  not  be 
reversed.  State  v.  Burns,  30  La.  An.  679.  Where  a  witness  has  testified  that  deceased 
was  pursuing  the  defendant  and  himself,  he  should  be  allowed  further  to  testify  that 
they  endeavored  to  escape.  Russell  r.  State,  11  Tex.  App.  288.  ITnder  a  plea  of 
self-defence  the  accused  may  show  the  threats  and  character  of  the  deceased.  Wil- 
liams V.  State,  74  Ala.  18.  Whether  he  does  so  or  not  evidence  by  the  State  that  de- 
ceased was  a  peaceable  man  is  inadmissible.  Eussell  v.  State,  11  Tex.  Apf>.  288 ;  Hud- 
son V.  State,  6  Tex.  App.  565 ;  Lewallen  v.  State,  Id.  475 ;  State  r.  Bryant,  55  Mo.  75 ; 
State  V.  Jesterman,  68  Mo.  408.  The  defence  cannot  show  the  bad  character  of  the 
deceased.  People  v.  Walworth,  4  N.  Y.  Crim.  Eep.  355.  The  general  character  of 
the  deceased  as  a  turbulent,  violent  man  is  relevant,  but  witnesses  cannot  testify  as  to 
particular  acts.  State  v.  Elkins,  63  Mo.  159  ;  State  r.  Brown,  Id.  439  ;  Marts  v.  State, 
26  O.  St.  162.  Nor  can  the  defendant  make  a  statement  as  to  the  details  of  a  quarrel 
between  himself  and  the  deceased.  Harrison  v.  State,  78  Ala.  5.  The  wife  of  deceased 
cannot  testify  that  the  killing  arose  out  of  a  quarrel  on  her  account.  Costley  v.  State, 
48  Md.  175 ;  State  v.  Baker,  30  La.  An.  1134. 


968  MURDER. 

Proof  of  malice — provocation  by  words  or  gestures  only.  Words 
of  reproach,  how  grievous  soever,  are  not  a  provocation  sufficient  to 
free  the  party  killing  from  the  guilt  of  murder  ;  neither  are  indecent 
or  provoking  actions  or  gestures,  expressive  of  contempt  or  reproach, 
sufficient,  without  an  assault  upon  the  person.  But  a  distinction  is 
to  be  observed,  where  the  party  killing  upon  such  provocation  makes 
use  of  a  deadly  weapon,  or  otherwise  manifests  an  intention  to  kill  or 
do  some  great  bodily  harm,  in  which  case  it  will  be  murder,  and  the 
case  where  he  strikes  with  a  stick  or  other  weapon  not  likely  to  kill, 
^„_,.-|  *and  unluckily,  aud  against  his  intention,  does  kill,  in  which 
-J  latter  case  it  will  only  be  manslaughter.  Foster,  290,  291. 
Where  the  deceased  coming  past  the  shop  of  the  prisoner,  distorted  his 
mouth  and  smiled  at  him,  upon  which  the  prisoner  killed  him,  it  was 
held  to  be  murder,  for  it  was  no  such  prov  ocation  as  would  abate  the  pre- 
sumption of  malice  in  the  party  killing.  R.  v.  Brain,  1  Hale,  P.  C. 
455.  If  A.  be  passing  along  the  street,  and  B.  meeting  him  (there 
being  a  convenient  distance  between  A.  and  the  wall)  takes  the  wall 
of  A.,  and  thereupon  A.  kills  him,  this  is  murder ;  but  if  he  had 
jostled  A.,  this  jostling  had  been  a  provo  cation,  and  would  have  made 
it  manslaughter  :  so  it  would  if  A.  riding  on  the  road,  B.  had  whipped 
the  horse  of  A.  out  of  the  track,  and  then  A.  had  alighted  and  killed 
B.,  which  would  have  been  manslaughter.  1  Hale,  P.  C.  455,  456. 
Upon  the  former  case  it  has  been  observed  that  it  properly  supposes 
considerable  violence  and  insult  in  the  jost  ling.  1  Russ.  Cri.  677  (/) 
5th  ed.  If  there  be  a  chiding  between  husband  and  wife,  and  the 
husband  thereupon  strikes  his  wife  with  a  pestle,  and  she  dies,  this 
is  murder,  and  the  chiding  will  not  be  a  provocation  to  reduce  it  to 
manslaughter.  1  Hale,  P.  C.  457.  In  the  following  case  the  dis- 
tinction taken  by  Mr.  Justice  Foster,  in  the  passage  cited  at  the  com- 
mencement of  the  present  paragrapli,  came  in  question  : — A.  drink- 
ing in  an  alehouse,  B.,  a  woman,  called  him  "  a  son  of  a  whore," 
upon  which  A.  taking  up  a  broomstick  at  a  distance,  threw  it  at  her, 
which  hitting  her  upon  the  head,  killed  her ;  and  whether  this  was 
murder  or  manslaughter  was  the  question.  Two  points  were  pro- 
pounded to  the  judges  at  Serjeant's  Inn  :  1,  whether  bare  words,  or 
words  of  this  nature,  will  amount  to  such  a  provocation  as  will  ex- 
tenuate the  olfeuce  into  manslaughter  ;  2,  admitting  that  it  would 
not,  in  case  there  had  been  a  striking  witli  such  an  instrument  as 
necessarily  would  have  caused  death,  as  stabbing  with  a  sword,  or 
pistoUiug,  yet  whether  this  striking,  which  was  so  improbable  to 
cause  death,  will  not  alter  the  case.  The  judges  not  being  unani- 
mous in  their  opinions  upon  the  point,  a  pardon  was  recommended. 
1  Hale,  P.  C.  456.  In  one  case  the  judges  are  said  to  have  resolved, 
that  words  of  menace  or  bodily  harm  would  come  Avithin  the  reason 
of  such  a  provocation  as  would  make  the  offiince  manslaughter  only. 
E.  V.  Lord  Morley,  1  Hale,  P.  C.  456.  But  in  another  report  of  the 
same  case  this  resolution  does  not  appear.  Kel.  55.  And  it  seems 
that  in  such  case  the  words  should  be  accompanied  by  some  act 
denoting  an  intention  of  following  them  up  by  an  actual  assault.     1 


MURDER.  969 

East,  P.  C.  233;  1  Huss.  on  Cri.  678,  5tli  ed.  Although  this  is  the 
general  rule  of  law,  yet  there  may  under  special  circumstances  be 
such  a  provocation  by  words  as  to  be  at  least  as  great  as  blows,  and 
in  such  a  case  a  violent  blow  resulting  in  death  may  be  justified  so  far 
as  to  reduce  the  crime  to  manslaughter.  Per  Blackburn,  J.  R.  v. 
Eothwell,  12  Cox,  C.  C.  145. 

On  the  subject  of  blows  accompanied  by  words.  Pollock,  B.,  has 
exm-essed  himself  as  follows  :  "If  there  be  a  provocation  by  blows, 
which  would  not  of  itself  render  the  killing  manslaughter,  but  it  be 
accompanied  by  such  provocation,  by  means  of  Avords  or  gestures,  as 
would  be  calculated  to  produce  a  degree  of  exasperation  equal  to  that 
which  would  be  produced  by  a  violent  blow,  I  am  not  prepared  to  say 
that  the  law  will  not  regard  these  circumstances  as  reducing  the  crime 
to  that  of  manslaughter  only."  R.  v.  Sherwood,  1  C.  &  K.  556,  47 
E.  C.  L.  And  see  R.  v.  Smith,  4  F.  &  F.  1066,  where  a  wife 
*spat  either  at  or  on  her  husband,  with  words  of  great  prove-  r^^-^-n 
cation.  He  immediately  stabbed  her,  and  the  judge  directed  '- 
the  jury  to  consider  whether,  under  all  the  circumstances,  the  assault 
was  a  serious  one. 

Proof  of  malice — provocation — assault.  Although,  under  circum- 
stances, an  assault  by  the  deceased  upon  the  prisoner  may  be  sufficient 
to  rebut  the  general  presumption  of  malice  arising  from  the  killing, 
yet  it  must  not  be  understood  that  every  trivial  provocation  which  in 
point  of  law  amounts  to  an  assault,  or  even  a  blow,  will,  as  a  mat- 
ter of  course,  reduce  the  crime  to  manslaughter.  For  where  the 
punishment  inflicted  for  a  slight  transgression  of  any  sort,  is  out- 
rageous in  its  nature,  either  in  the  manner  or  continuance  of  it,  and 
beyond  all  proportion  to  the  offence,  it  is  rather  to  be  considered  as 
the  eft'ect  of  a  brutal  and  diabolical  malignity  than  of  human  frailty, 
and  is  one  of  the  symptoms  of  that  Avhich  the  law  denominates 
malice,  and  the  crime  will  amount  to  murder  notwithstanding  such 
provocation.  Barbarity,  says  Lord  Holt  (R.  v.  Keate,  Comb.  408), 
will  often  make  malice.*^  1  East,  P.  C.  334 ;  1  Russ.  Cri.  678,  5th  ed. 

*  One  who  is  without  fault  himself  when  attacked  by  another,  may  kill  his  assail- 
ant, if  the  circumstances  be  sucli  as  to  furnish  reasonable  ground  for  apprehending  a 
design,  to  take  awity  his  life  or  do  him  some  great  bodily  harm,  and  there  is  also  rea- 
sonable ground  for  believing  the  danger  imminent  that  such  design  will  be  accom- 
plislied ;  although  it  may  afterwards  turn  out  that  the  appearances  were  false,  and 
there  was  in  fact  no  such  design,  nor  any  danger  that  it  would  be  accomplished.  But 
this  principle  will  not  justify  one  in  returning  blows  with  a  dangerous  weapon  when 
he  is  struck  with  the  naked  hand,  and  there  is  no  reason  to  apprehend  a  design  to  do 
him  great  bodily  harm.  Nor  will  it  justify  homicide  when  tlie  combat  can  be  avoided, 
or  when,  after  it  is  commenced,  the  party  can  withdraw  from  it  in  safety  before  he  kills 
his  adversary.  Shester  t).  People,  2  Comst.  193.  [State  t'.Rheams,  34  Minn.  18.  It  is  not 
a  ground  for  a  new  trial,  that  the  judge  in  charging  the  jury  in  relation  to  the  duty 
of  defendant  where  his  opponent  retreated,  failed  to  refer  to  the  fact  whether  such 
retreat  was  made  in  good  faith  or  not.  Jarrell  v.  State,  58  Ind.  293.  Provocation  is 
no  defence  to  an  indictment  for  murder,  where  tlie  defendant  incited  it.  Stewart  v. 
State,  78  Ala.  436  Nor  is  the  doctrine  that  defendant  if  attacked  must  retreat  "a 
cowardly  doctrine."  Harrison  v.  State,  78  Ala.  5.  It  is  not  self-defence  wliere  the 
slayer  follows  the  deceased  up.    Hughes  v.  People,  116  111.  330.]     The  necessity  that 


970  MURDER. 

There  being  an  affray  in  the  streets,  the  prisoner,  a  soldier,  ran 
towards  the  combatants.  The  deceased,  seeing  him,  exclaimed,  "  You 
will  not  murder  the  man,  will  you  ?"  The  prisoner  replying,  "  What 
is  that  to  you,  you  bitch  ?"  the  deceased  gave  him  a  box  on  the  ear, 
upon  which  the  prisoner  struck  her  on  the  breast  with  the  ])ummel  of 
his  sword.  She  fled,  and  the  prisoner  pursuing  her,  stabbed  her 
in  the  back.  Holt,  C  J.,  was  first  of  opinion  that  this  was  murder, 
a  single  box  on  the  ear  from  a  woman  not  being  a  sufficient  provoca- 
tion to  kill  in  this  manner,  after  he  had  given  her  a  blow  in  return 
for  the  blow  on  the  ear.  But  it  afterwards  appearing  that  the  de- 
ceased had  struck  the  prisoner  a  blow  in  the  face  with  an  iron  patten, 
which  drew  a  great  deal  of  blood,  it  was  held  onlv  manslaughter. 
R.  V.  Stedman,  Foster,  292 ;  1  East,  P.  C.  234.  the  smart  of  the 
wound,  adds  Mr.  Justice  Foster,  and  the  eifusion  of  the  blood  might 
possibly  keep  his  indignation  boiling  till  the  moment  of  the  fact. 
Id.  A  quarrel  arising  between  some  soldiers  and  a  number  of  keel- 
men  at  Sandgate,  a  violent  aifray  ensued,  and  one  of  the  soldiers  was 
very  much  beaten.  The  prisoner,  a  soldier,  who  had  before  driven 
part  of  the  mob  down  the  street  with  his  sword  in  the  scabbard,  on 
his  return,  seeing  his  comrade  thus  used,  drew  his  sword,  and  bid  the 
mob  stand  clear,  saying  he  would  sweep  the  street ;  and  on  their 
pressing  on  him,  lie  struck  at  them  with  the  flat  side,  and  as  they  fled 
pursued  them.  The  other  soldier  in  the  mean  time  had  got  away, 
and  when  the  prisoner  returned  he  asked  whether  they  had  murdered 
his  comrade  ;  but  being  again  several  times  assaulted  by  the  mob, 
he  brandished  his  sword,  and  bid  them  keep  off.  At  this  time  the 
deceased,  who  from  his  dress  might  be  mistaken  for  a  keelman,  was 
going  along  about  five  yards  from  the  prisoner  ;  but  before  he  passed 
the  prisoner  wont  up  to  him,  and  struck  him  on  the  head  with  the 
sword,  of  which  he  presently  died.  This  was  held  manslaughter ;  it 
was  not  murder,  as  the  jury  had  found,  because  there  was  a  previous 

will  justify  the  taking  of  life  need  not  be  actual,  but  the  circumstances  must  be  such 
as  to  impress  the  mind  of  the  slayer  with  the  reasonal)le  belief  that  such  necessity  is 
impendinsf.  Oliver  v.  State,  17  Ala.  588.  [The  defendant  may  testify  as  to  his  belief 
that  his  life  was  in  danger.  Duncan  v.  State,  84  Ind.  204.  The  belief  that  it  is  neces- 
sary to  kill  tlie  assailant  must  not  only  be  honest  but  reasonable.  Jackson  v.  State, 
78  Ala.  471 ;  but  where  there  is  substantial  immediate  fear,  self-defence  is  a  good  de- 
fence, even  tliough  it  turn  out  to  have  been  groundless.  People  v.  Walworth,  4  N.  Y. 
Crini.  Rep.  355.  Evidence  of  threats  made  by  the  deceased  are  inadmissible  unless  it  be 
shown  that  the  defendant  was  in  apparent  imminent  danger.  State  v.  Labazan,  37  La. 
An.  489.  Whetlier  such  foundation  has  been  laid  is  for  the  court.  State  v.  Janvier,  Id. 
644  ;  State  v.  Kervin,  Id.  782 ;  State  v.  Jacksc^i,  Id.  SU().  So  also  evidence  of  malice 
on  the  part  of  the  deceased  against  the  prisoner  is  only  admissible  in  cases  of  self- 
defence,  or  where  the  evidence  is  wholly  circumstantial.  State  v.  Gooch,  94  N.  C. 
987  ;  State  ■«.  Ilensley,  Id.  1021.]  When  upon  the  trial  of  an  indictment  for  murder, 
the  prisoner  attempts  to  justify  the  homicide  on  tiie  ground  that  it  was  cojiimitted  in 
self-defence,  he  must  show  to  the  satisfaction  of  the  jury  that  he  was  in  imminent  dan- 
ger, either  of  death  or  of  some  great  bodily  harm.  It  is  not  sufficient  that  the  accused 
believed  that  it  was  necessary  to  take  the  life  of  his  assailant  in  order  to  protect  him- 
self from  some  great  personal  injury.     People  i'.  Shester,  4  Barb.  460.     S. 

On  instructions  upon  such  evidence.  Slate  v.  Harrington,  12  Nev.  125.  A  blow 
with  a  slight  walking  stick  given  in  consequence  of  opprobrious  words,  where  the 
battery  was  not  disproportioned  to  the  insult  offered,  is  not  such  considerable  provo- 
cation as  would  rebut  the  presumption  of  malice.     Thompson  v.  State,  55  Ga.  47. 


MUEDER.  971 

provocation,  and  the  blood  -svas  heated  in  the  contest ;  nor  was  it  in 
self-defence,  because  there  was  no  inevitable  necessity  to  excuse  the 
killing  in  that  maimer.     11.  v.  Brown,  1  East,  P.  C.  245. 

A  gentleman  named  Luttrell,  being  arrested  for  a  small  debt,  pre- 
vailed on  one  of  the  officers  to  go  with  him  to  his  lodgings,  while  the 
*other  was  sent  for  the  attorney's  bill.  Words  arose  at  the  r*77o 
lodgings  about  civility  money,  and  Luttrell  went  upstairs  to  ■- 
fetch  money  for  the  payment  of  debt  and  costs.  He  soon  retiu'ned 
with  a  brace  of  loaded  pistols  in  his  bosom,  which  on  the  importunity 
of  his  servant,  he  laid  down  on  the  table,  saying  he  did  not  intend  to 
hurt  the  officers,  but  he  would  not  be  ill-used.  The  officer  who  had 
been  sent  for  the  bill  arriving,  and  some  angry  words  passing,  Luttrell 
struck  one  of  the  officers  in  the  face  with  a  walking  cane  and  drew  a 
little  blood,  whereupon  both  of  them  fell  upon  him,  one  stabbed  him 
in  nine  places,  he  all  the  while  on  the  ground  begging  for  mercy,  and 
unable  to  resist  them  ;  and  one  of  them  fired  one  of  the  pistols  at  him 
while  on  the  ground,  and  gave  him  his  death-wound.  This  was  held 
manslaughter,  by  reason  of  the  first  assault  by  the  cane.  Such  is  the 
report  of  the  case  given  by  Sir  J.  Strange,  upon  which  Mr.  Justice 
Foster  has  observed  what  an  extraordinary  case  it  is — that  all  these 
circumstances  of  aggravation,  two  to  one,  being  helpless  on  the  ground, 
and  begging  for  mercy,  stabbed  in  nine  places,  and  then  dispatched 
with  a  pistol, — that  all  these  circumstances,  plain  indications  of  a  deadly 
revenge  or  diabolical  fury,  should  not  outweigh  a  slight  stroke  with  a 
cane.  The  learned  judge  proceeds  to  state  that  in  the  printed  trial 
(St.  Tr.  195)  there  are  some  circumstances  which  have  been  entirely 
dropped,  and  others  very  slightly  mentioned  by  the  reporter.  1.  Mr. 
Luttrell  had  a  sword  by  his  side  which  after  the  affray  was  over,  was 
found  drawn  and  broken.  How  tliat  happened  did  not  appear  in  evi- 
dence. 2.  When  Luttrell  laid  the  pistols  on  the  table,  he  declared 
that  he  brought  them  because  he  would  not  be  forced  out  of  his  lodg- 
ings. 3.  He  threatened  the  officers  several  times.  One  of  the  officers 
appeared  to  be  wounded  in  the  hands  with  a  pistol-shot  (both  the  pis- 
tols being  discharged  in  the  affray),  and  slightly  on  the  wrist  with 
some  sharp-pointed  weapon,  and  the  other  was  slightly  wounded  in 
tlie  hand  with  a  like  weapon.  5.  The  evidence  touching  Luttrell's  beg- 
ging for  mercy  was  not  that  he  was  on  the  ground  begging  for  mercy,  but 
that  on  the  ground  he  held  up  his  hands  as  if  begging  for  mercy.  The 
chief  justice  directed  the  jury,  that  if  they  believed  Luttrell  was  en- 
deavoring to  rescue  himself  (which  he  seemed  to  think  was  the  case, 
and  which,  adds  Mr.  Justice  Foster,  probably  was  the  case),  it  would 
be  justifiable  homicide  in  the  officers.  However,  as  Luttrell  gave  the 
first  blow  accompanied  with  menaces  to  the  officers,  and  having  regard 
to  the  circumstance  of  producing  loaded  pistols  to  prevent  their  taking 
him  from  his  lodgings,  which  it  would  have  been  their  duty  to  do  if 
the  debt  had  not  been  paid  or  bail  given,  he  declared  it  could  be  no 
more  than  manslaughter.  E,.  v.  Reason,  Foster,  293 ;  1  Str.  499  ;  1 
East,  P.  C.  320. 

Two  soldiers,  having  a  recruit  in  a  room  under  their  care,  who 


972  MURDER. 

wislioJ  to  leave  them,  one  of  tliein  stationed  liimself  at  tlio  door  with 
his  sword  drawn  to  prevent  ingress  or  egress,  and  a  person  wisliing  to 
enter  the  room  (which  Avas  a  pnblic-house,  kept  by  his  father)  was  re- 
sisted by  the  soldier  at  the  door  ;  wherenpon  a  strnggle  ensning,  the 
other  soldier  coming  out,  strnck  the  party  strnggling  with  his  bayonet 
in  the  back.  Being  indicted  for  stabbing  with  intent  to  mnrder,  and 
convicted,  the  jndges  on  a  reference  to  them,  held  the  conviction  right, 
the  soldiers  having  no  authority  to  enlist ;  and  they  said  that  it 
would  have  been  murder  if  death  had  ensued.  E..  v.  Longden, 
Russ.  &  Ry.  228. 

On  a  trial  for  murder  of  a  wife  by  her  husband,  evidence  that  the  wife 
*7~_n  *li^^^  01^  other  occasions  tried  to  strangle  him  with  his  necker- 
-J  chief  was  allowed  to  be  given  in  order  to  show  the  character 
of  tlie  assault  he  had  to  apprehend.  It  appeared  from  the  evidence 
that  the  prisoner  was  very  sensitive  about  the  neck  from  old  abscesses, 
and  tb.at  the  wife  on  several  occasions  had  twisted  his  neckerchief 
round  his  neck  until  he  became  black  in  the  face.  R.  v.  Hopkins,  10 
Cox,  C.  C.  229.  Where  the  prisoner  levelled  a  gun  at  the  deceased 
and  it  was  a  question  whether  the  gun  went  off  accidentally  or  not. 
Lord  Chief  Justice  Cockburn  left  the  following  questions  to  the 
jury: — 1.  Was  the  discharge  of  the  gun  intentional  or  accidental  ?  (a) 
If  intentional,  was  it  from  ill-feeling  to  Drewry,  or  desire  to  get  rid  of 
him  on  account  of  his  wife?  in  which  case  it  would  be  murder.  (6) 
If  it  was  not  so  done,  was  it  done  by  the  prisoner  in  self-defence,  and 
to  protect  himself  from  death  or  serious  bodily  injury  intended 
towards  him  by  the  deceased  ;  or  (c)  from  the  reasonable  apprehension 
of  it  induced  by  the  words  and  conduct  of  the  deceased,  though  the 
latter  may  not,  in  fact,  have  intended  death  or  serious  injury?  (d)  If 
not  so,  was  it  done  after  an  assault  made  by  the  deceased  on  the  pris- 
oner, tliough  short  of  an  assault  calculated  to  kill  or  cause  serious 
bodily  injury?  or  (e)  Was  it  done  under  such  a  degree  of  alarm  and 
bewilderment  of  mind,  caused  by  the  conduct  of  the  deceased,  as  to 
deprive  the  prisoner  for  the  time  of  his  reason  and  power  of  self-con- 
trol ;  or  (/)  Was  the  effect  of  the  language  and  conduct  of  the  deceased 
such  as  to  provoke  the  angry  passions  of  the  prisoner  so  as  to  deprive 
him  of  his  reason  and  power  of  self-control  ?  2.  If  the  discharge  of 
the  gun  was  accidental — in  which  case  the  prisoner  cannot  be  convicted 
of  murder,  but  may  be  of  manslaughter — (a)  Was  the  gun  levelled 
by  tlie  prisoner  at  the  deceased  in  self-defence  against  an  attack  of  the 
deceased,  endangering  life  or  limb,  or  reasonably  apprehended  by  the 
prisoner  as  likely  to  do  so,  in  either  of  which  cases  the  prisoner  would 
be  entitled  to  acquittal  ?  or  (6)  Was  the  gun  levelled  by  the  prisoner 
at  the  deceased  unnecessarily  under  the  circumstances,  but  without  the 
intention  of  discharging  it,  in  which  case  it  would  be  manslaughter. 
R.  V.  Weston,  14  Cox,  C.  C.  346. 

Under  this  head  may  be  mentioned  the  case  of  peace  officers 
endeavoring  to  arrest  without  proper  authority,  the  killing  of  whom 
Avill  not,  unless  the  party  can  retreat,  amount  to  murder  ;  the  at- 
tempt to  make  an  unlawful  arrest  being  considered  a  sufficient  prove- 


MURDER.  973 

cation,    R.  v.  Curvan,  1  Moo.  C.  C.  132  ;   and  see  all  the  cases  stated 
post} 

Proof  of  malice — provocation — instrument  used.  In  consider- 
ing the  question  of  malice  where  death  has  ensued  after  provocation 
given  by  the  deceased  in  assaulting  the  prisoner,  or  ujjon  other  provo- 
cation, especial  attention  is  to  be  paid  to  the  nature  of  the  weapon  with 
which  death  was  inflicted.^  If  it  was  one  likely  to  produce  that  re- 
sult, as  used  by  the  prisoner,  he  will  be  presumed  to  have  used  it  with 
the  intention  of  killing,  which  will  be  evidence  of  malice:^  if,  on 
the  contrary,  it  was  a  weapon  not  likely  to  produce  death,  or  cal- 
culated to  give  a  severe  wound,  that  presumption  will  be  ^vanting. 
It  must  be  admitted  to  be  extremely  difficult  to  define  the  nature  of 
the  weapons  which  are  likely  to  kill  (Ld.  Raym.  1498);  since  it  is 
rather  in  the  mode  in  which  the  weapon  is  used  than  in  the  nature  of 
the  weapon  itself,  that  the  danger  to  life  consists.  Accordingly,  the 
decisions  upon  this  head  are  far  from  being  satisfactory,  and  do 
not  lay  down  any  general  rule  with  regard  to  the  nature  of  the 
'^weapons.  In  one  instance,  Mr.  Justice  Foster  takes  a  nice  r^^i^R 
distinction  with  regard  to  the  size  of  a  cudgel.  The  observa-  L 
tions  arise  upon  R.  v.  Rowley,  12  Rep.  17  ;  1  Hale,  P.  C.  453;  which 
was  as  follows  : — The  prisoner's  son  fights  with  another  boy,  and  is 
beaten.  He  runs  home  to  his  father  all  over  blood,  and  the  father 
takes  a  staff,  runs  three-quarters  of  a  mile,  and  beats  the  other  boy, 
who  dies  of  the  beating.  This  is  said  to  have  been  ruled  manslauoh- 
ter,  because  done  in  sudden  heat  and  passion.  "  Surely,"  says  !^Ir. 
Justice  Foster,  "  the  provocation  was  not  very  grievous  :  the  boy  had 
fought  with  one  who  happened  to  be  an  overmatch  for  him,  and  was 
worsted.  If,  upon  this  provocation,  the  father,  after  running  three- 
quarters  of  a  mile,  had  set  his  strength  against  the  child,  and  de- 
spatched him  with  a  hedge  stake,  or  any  other  deadly  weapon,  or  by 
repeated  blows  with  a  cudgel,  it  would,  in  my  opinion,  have  been 
murder ;  since  any  of  these  circumstances  would  have  been  a  plain 
indication  of  the  malitia,  the  mischievous,  vindictive  motive  before 
explained."  But  with  regard  to  these  circumstances,  with  what 
weapon  or  to  what  degree  the  child  is  beaten,  Coke  is  totally  silent. 
But  Croke  (Cro.  Jac.  29G)  sets  the  case  in  a  much  clearer  light.  His 
words  are  : — "  Rowley  struck  the  child  with  a  small  cudgel  [Godbold, 
182,  calls  it  a  rod],  of  which  stroke  he  afterwards  died."  *'  I  think," 
continues  Foster,  "it  might  be  fairly  collected  by  Croke's  manner  of 
speaking,  that  the  accident  happened  by  a  single  stroke  with  a  cudgel 

*  Unless  express  malice  can  be  shown.     Raffertyu.  People,  69  111.  111. 

2  Kilpatrick  v.  Comraonwealth,  31  Pa.  St.  198  ;  State  v.  Ward,  5  Hairing.  496  ; 
People  V.  Butler,  8  Cal.  435  ;  State  v.  West,  6  Jones's  Law,  505 ;  State  v.  Gillick,  7 
Clarke,  287.     S. 

'  See  Wills  v.  State,  74  Ala.  21.  The  presumption  of  malice  from  weapon  used  is 
rebutted  if  there  is  a  reasonable  doubt  shown.  Lamar  v.  State,  63  Miss.  265.  The 
question  whether  the  weapon  is  deadly  is  for  the  jury.  Pierce  v.  State,  21  Tex.  App. 
540. 


974  MURDER. 

not  likely  to  destroy,  and  that  doath  did  not  immediately  onsne.  The 
stroke  was  given  in  heat  of  blood,  and  not  with  any  of  the  circum- 
stances which  import  the  malilia,  the  malignity  of  heart  attending  the 
facts  already  explained,  and  therefore  manslaughter.  I  observe  Lord 
llaymond  lays  great  stress  on  the  circumstance  that  the  stroke  Avas 
with  a  cudgel  not  likely  to  kill."  Lord  llaym.  1498  ;  Foster,  294. 
The  nature  of  the  instrument  used,  as  being  most  material  on  the 
question  of  malice,  was  much  commented  upon  in  the  following  case : 
It  was  found  upon  a  special  verdict  that  the  prisoner  had  directed  her 
daugliter-in-law,  a  child  of  nine  years  old,  to  spin  some  yarn,  and 
upon  her  return  home,  finding  it  badly  done,  she  threw  a  four-legged 
stool  at  the  child,  and  struck  her  on  the  right  temple,  of  M'hich  the 
child  soon  afterwards  died.  The  jury  found  that  the  stool  Avas  of 
sufficient  size  and  weight  to  give  a  mortal  blow,  but  that  the  prisoner, 
when  she  threw  it,  did  not  intend  to  kill  the  deceased.  She  afterwards 
threw  the  body  into  the  river,  and  told  her  husband  that  the  child  was 
lost.  After  argument  in  the  King's  Bench  (where  several  formal  ob- 
jections were  taken  to  the  special  verdict),  the  case,  on  account  of  its 
difficulty,  was  referred  to  the  consideration  of  all  the  judges,  but  no 
opinion  was  ever  delivered,  as  some  of  the  judges  thought  it  a  proper 
case  to  recommend  a  pardon.  R.  v.  Hazel,  1  East,  P.  C.  236  ;  1  Leach, 
368.  Where  the  prisoner  had  given  a  pair  of  clogs  to  the  deceased,  a 
boy,  to  clean,  and  finding  them  not  cleaned,  struck  him  with  one  of 
them,  of  which  blow  the  boy  died  ;  this  was  held  to  be  only  man- 
slaughter, because  the  prisoner  could  not,  from  the  size  of  the  instru- 
ment made  use  of,  have  had  any  intention  to  take  away  the  boy's  life. 
R.  V.  Turner,  Ld.  Raym.  144,  1499.  The  prisoner,  a  butcher,  seeing 
some  of  his  sheep  getting  through  the  hurdles  of  their  pen,  ran 
towards  the  boy  who  was  attending  them,  and  taking  up  a  stake  that 
was  on  the  ground,  threw  it  at  him.  The  stake  hit  the  boy  on  the 
head,  and  fractured  his  skull,  of  which  he  soon  afterwards  died. 
5^^^.p-l  Nares,  J.,  said  to  the  jury  :  You  will  consider  whether  *the 
-■  stake,  which  was  lying  on  the  ground,  and  was  the  first  thing 
the  prisoner  saw  in  the  heat  of  his  passion,  is  or  is  not,  under  such 
circumstances,  and  in  such  a  situation,  an  improper  instrument  for  the 
purposes  of  correction.  For  the  using  a  weapon  from  which  death  is 
likely  to  ensue,  imports  a  mischievous  disposition,  and  the  law  iniplies 
that  a  degree  of  malice  attending  the  act,  which,  if  death  actually 
happen,  will  be  murder.  Therefore,  if  you  would  think  the  stake  an 
improper  instrument,  you  will  further  consider  whether  it  was  used 
with  an  intent  to  kill.  If  you  think  it  was,  you  must  find  the  pris- 
oner guilty  of  murder.  But,  on  the  contrary,  if  you  are  persuaded 
that  it  was  not  done  with  an  intent  to  kill,  the  crime  will  then  amount 
at  most  to  manslaughter.  R.  v.  Wigg,  1  Leach,  387  (n).  A.  finding 
a  trespasser  on  his  land,  in  the  first  transport  of  his  passion  he  beats 
him,  and  kills  him  ;  this  has  been  held  manslaughter.  1  Hale,  P.  C. 
473.  But  it  must  be  understood,  says  Mr.  Justice  Foster,  that  he 
beat  him  not  with  a  mischievous  intention,  but  merely  to  chastise  and 
deter  him.  For  if  he  had  knocked  his  brains  out  with  a  bill  or  hedge- 


MURDER.  975 

stake,  or  given  him  an  outrageous  beating  with  an  ordinary  cudgel, 
beyond  the  bounds  of  a  sudden  resentment,  whereof  he  had  died,  it 
would  have  been  murder.     Foster,  291. 

The  prisoner  was  indieted  for  manslaughter.  It  appeared  that  he 
was  in  the  habit  of  going  to  a  cooper's  shop  for  chips,  and  was  told 
by  the  cooper's  apprentice  that  he  must  not  come  again.  In  the  course 
of  the  same  day  he  came  again,  and  was  stopped  by  the  aj)prentice, 
upon  which  he  immediately  went  oiF,  and  in  passing  a  work-bench 
took  up  a  ichittle  (a  sharp-pointed  knife  with  a  long  handle)  and 
threw  it  at  the  apprentice,  whose  body  it  entered,  and  killed  him. 
Hullock,  B.,  said  to  the  jury,  if  without  adequate  provocation  a  per- 
son strikes  another  with  a  weapon  likely  to  occasion  death,  although 
he  had  no  previous  malice  against  the  party,  yet  he  is  to  be  presumed 
to  have  had  such  malice,  from  the  circumstances,  and  he  is  guilty  of 
murder.  The  jury  found  the  prisoner  guilty,  and  Hullock,  B.,  ob- 
served, that  had  he  been  indicted  for  murder,  the  evidence  would  have 
sustained  the  charge.     R.  v.  Laugstaif,  1  Lewis,  C.  C.  162. 

Provocation  in  other  cases — third  parties.  There  is  one  peculiar 
case  of  provocation  which  the  law  recognizes  as  sufficient  to  reduce 
the  act  of  killing  to  manslaughter ;  where  a  man  finds  another  in  the 
act  of  adultery  with  his  wife,  and  kills  him  in  the  first  transport  of 
his  passion.  R.  v.  Manning,  Sir  T.  Raym.  212;  1  Russ.  Cri.  687, 
5th  ed.  But  if  the  husband  kill  the  adulterer  deliberately,  and  upon 
revenge,  after  the  fact  and  sufficient  cooling  time,  the  provocation  will 
not  avail  in  alleviation  of  the  guilt.  1  East,  P.  C.  251  ;  R.  v.  Kelley, 
2  C.  &  K.  814,  jDcr  Rolfe,  B.,  61  E.  C.  L.^ 

So  if  a  father  see  a  person  in  the  act  of  committing  an  unnatural 
offence  with  his  son,  and  instantly  kill  him,  it  seems  that  it  will  be 
only  manslaughter,  and  that  of  the  lowest  degree ;  but  if  he  only 
hear  of  it,  and  go  in  search  of  the  person,  and  meeting  him  strike 
him  with  a  stick,  and  afterwards  stab  him  with  a  knife  and  kill  him,  in 
point  of  law  it  will  be  murder.    R.  v.  Fisher,  8  C.  &  P.  182, 34  E.  C.  L. 

In  the  above  case,  Parke,  J.,  said,  that  whether  the  blood  has  had 
time  to  cool  or  not  is  a  question  for  the  court,  and  not  for  the  jury ; 
but  it  is  for  the  jury  to  find  Mdiat  length  of  time  elapsed  between  the 
provocation  received  and  the  act  done.  It  is,  however,  submitted 
that  the  whole  question  is  for  the  jury. 

*It  has  been  held  by  Rolfe,  B.,  that  a  blow  given  to  the  r*777 
prisoner's  wife  would  afford  the  same  justification  as  a  blow  ■- 
given  to  the  prisoner  himself,  so  as  to  reduce  the  killing  to  man- 
slaughter. R.  V.  Rodgers,  MS.  York  Spr.  Ass.  1842  ;  and  in  one  ease 
Cockburn,  C.  J.,  is  reported  to  have  held  that  the  charge  of  wilful 
murder  was  reducible  to  manslaughter  where  the  prisoner  had  killed 
his  son-in-law,  who  had  assaulted  the  prisoner's  daughter  in  his  pres- 
ence in  a  violent  manner,  although  not  in  a  manner  to  endanger  life. 
R.  V.  Harrington,  10  Cox,  C.  C.  370. 

^The  knowledge  of  the  wife's  adultery  must  have  been  learned  by  the  husband  very 
shortly  before  he  kills  the  adulterer.    Sanchez  v.  People,  22  N.  Y.  147. 


976  MURDER. 

Proof  of  malice — provocation  must  be  recent.     In  order  to  rcbnt 
the  evidence  of  malice,  it  must  appear  that  the  provocation  was  recent; 
for  ill  every  case  of  homicide,  however  great  the  provocation  may  be, 
if  there  be  a  sufficient  time  for  passion  to  subside,  and   for  reason  to 
interpose,  such  homicide  will  bo  murder.*     Foster,  296.     "With  respect 
to  the  interval  of  time  allowed  for  passion  to  subside,  it  has  l)een  ob- 
served, that  it  is  much  easier  to  lay  down  rules  for  determining  what 
cases  arc  Avithout  the  limits  than  how  far  exactly  those  limits  extend. 
It  must  be  remembered,  that  in  these  cases  the  immediate  object  of  in- 
quiry is,  whether  the  suspension  of  reason  arising  from  sudden  pas- 
sion continued  from  the  time  of   the   provocation    received    to   the 
very  instant  of  the  mortal  stroke  given ;    for  if,  from  any  circum- 
stance whatever,  it  appears  that  the  party  reflected,  deliberated,  or 
cooled,  any  time  before  the  mortal  stroke  given,  or  if,  in  legal  pre- 
sumption, there  was  time  or  opportunity  for  cooling,  the  killing  will 
amount  to  murder,  it  being  attributable  to  malice  and  revenge  rather 
than  to  human  frailty.     1   East,   P.   C.  252;    2  Ld.  Eaym.  1496. 
The  following  are  stated  as  general  circumstances  amounting  to  evi- 
dence of  malice,  in  disproof  of  the  party's  having  acted  under  the  in- 
fluence of  passion  only.     If,  between  the  provocation  received  and  the 
stroke  given,  the  party  giving  the  stroke  fall  into  other  discourse  or 
diversions,  and  continue  so  engaged  a  reasonable  time  for  cooling  ;  or 
if  he  take  up  or  pursue  any  other  business  or  design  not  connected 
with  the  immediate  object  of  his  passion,  or  subservient  thereto,  so 
that  it  may  be  reasonably  supposed  that  his  intention  was  once  called 
off"  from  tiie  subject  of  his  provocation  ;    again,  if  it  appear  that  he 
meditated  upon  his  revenge,  or  used  any  trick  or  circumvention  to  eifect 
it,  for  that  shows  deliberation  which  is  inconsistent  with  the  excuse  of 
sudden  passion,  and  is  the  strongest  evidence  of  malice ;  in  these  cases 
the  killing  will  amount  to  murder.^     It  may  further  be  observed,  in 
respect  to  time,  that  in  proportion  to  the  lapse  between  the  provo- 
cation and  the  stroke,  less  allowance  ought  to  be  made  for  any  ex- 
cess of  retaliation,  either  in  the    instrument    or    the    manner  of   it. 
The  length  of  time  intervening  between  the  injury  and  the  retali- 
ation adds  very  much  to  the  presumption  of  malice  in  law,  and  is 
in  some  cases  evidence  in  itself  of  deliberation.     1   East,  P.  C.  252. 
A  leading  case  on  this  subject  is  that  of  Major  Oneby,  who  was  in- 

^  State  V.  McCants,  1  Spears,  384.  Evidence  of  a  fight  which  took  place  hetween  the 
deceased  and  the  defendant  six  hours  before  the  homicide,  is  not  admissible  in  favor 
of  the  defendant,  either  as  a  part  of  tlie  resyestce,  or  to  show  a  provocation  for  the 
murder.  People  v.  Smith,  26  Cal.  665.  [Nor  evidence  of  threats  made  two  Avceks 
previous  to  the  murder,  although  communicated  to  the  accused,  where  there  is  evidence 
of  deliberation  on  his  part.  Payne  v.  State,  00  Ala.  80.  Nor  details  of  how  the  de- 
ceased whipped  the  prisonei"'s  brother,  where  prisoner  heard  of  it  only  several  days 
after  it  occurred.  Johnson  v.  Commonwealth,  82  Ky.  110.]  "When  the  immediate 
occasion  on  which  a  liomicide  occurred  Avas  the  result  of  preconceived  anger  and 
malice,  it  was  held  that  the  killing,  if  done  in  malice,  though  in  mutual  combat, 
was  deliberate  and  premeditated  murder.  State  v.  Green,  37  Mo.  460.  If  the  de- 
fendant of  malice  sought  the  quarrel,  no  provocation  will  reduce  the  grade.  Murphy 
V.  State,  37  Ala.  142.     S. 

*  Commonwealth  v.  Green,  1  Ash.  289.    S, 


MURDER.  977 

dieted  for  the  murder  of  a  Mr.  Gower.  A  special  verdict  was  found, 
which  stated  that  the  prisoner  being  in  company  with  the  deceased 
and  three  other  persons  at  a  tavern,  in  a  friendly  manner,  after  some 
time  began  playing  at  hazard,  when  Rich,  one  of  the  company,  asked 
if  any  one  would  set  him  three  half-crowns,  whereupon  the  deceased, 
in  a  jocular  manner,  laid  down  three  halfpence,  telling  Rich  he  had 
set  him  three  pieces,  and  the  prisoner  at  the  same  time  set  Rich  three 
half-crowns  and  lost  them  to  him  ;  immediately  after  which  the 
*prisoner  in  an  angry  manner  turned  to  the  deceased  and  said,  rH«77o 
it  was  an  impertinent  thing  to  set  halfpence,  and  he  was  an  L 
impertinent  puppy  for  so  doing,  to  which  the  deceased  answered,  who- 
ever called  him  so  was  a  rascal.  Upon  this  the  prisoner  took  up  a 
bottle,  and  with  great  force  threw  it  at  the  deceased's  head,  but  did 
not  hit  him.  The  deceased  immediately  tossed  a  candlestick  or  bottle 
at  the  prisoner,  which  missed  him  ;  upon  which  they  both  rose  to  fetch 
their  swords,  which  hung  in  the  room,  and  the  deceased  drew  his  sword, 
but  the  prisoner  was  prevented  from  drawing  his  by  the  company. 
The  deceased  then  threw  away  his  sword,  and  the  company  interposing, 
they  sat  down  again  for  the  space  of  an  hour.  At  the  expiration  of 
that  time  the  deceased  said  to  the  prisoner,  "We  have  had  hot  Avords, 
but  you  were  the  aggressor  ;  but  I  think  we  may  pass  it  over,"  and 
at  the  same  time  offered  his  hand  to  the  prisoner,  who  replied,  "  No, 
damn  you,  I  will  have  your  blood  !"  The  reckoning  being  paid,  all 
the  company,  except  the  prisoner,  went  out  of  the  room  to  go  home, 
but  he  called  to  the  deceased,  "  Young  man,  come  back,  I  have  some- 
thing to  say  to  you,"  on  which  the  deceased  came  back.  The  door 
was  immediately  closed,  and  the  rest  of  the  company  excluded,  but 
they  heard  a  clashing  of  swords,  and  the  deceased  was  found  to  have 
received  a  mortal  wound.  It  was  also  found  that  at  the  breaking  up 
of  the  company  the  prisoner  had  his  great-coat  thrown  over  his  shoul- 
ders, and  that  he  received  three  slight  wounds  in  the  fight,  and  the  de- 
ceased being  asked  on  his  death-bed  whether  he  received  his  wound  in 
a  manner  among  swordsmen  called  fair,  answered,  "  I  think  I  did." 
It  was  further  found,  that  from  the  throwing  of  the  bottle  there  was 
no  reconciliation  between  the  prisoner  and  the  deceased.  Upon  these 
facts  all  the  judges  were  of  opinion  that  the  prisoner  was  guilty  of 
murder,  he  having  acted  upon  malice  and  deliberation,  and  not  from 
sudden  passion.  R.  v.  Oneby,  2  Str.  766  ;  2  Ld.  Raym.  1489.  It 
must,  I  think,  says  Mr.  East,  be  taken  upon  the  facts  found  in  the 
verdict,  and  the  argument  of  the  chief  justice,  that  after  the  door  had 
been  shut  the  parties  were  upon  an  equal  footing,  in  point  of  prepara- 
tion, before  the  fight  began  in  which  the  mortal  wound  was  given. 
The  main  point  then  upon  which  the  judgment  turned,  and  so  declared 
to  be,  was  express  malice,  after  the  interposition  of  the  company,  and 
the  parties  had  all  sat  down  again  for  au  hour.  Under  these  circum- 
stances the  court  were  of  opinion  that  the  prisoner  had  had  reasonable 
time  for  cooling,  after  Avhich,  upon  an  offer  of  reconciliation  from  the 
deceased,  he  had  made  use  of  that  bitter  and  deliberate  expression, 
he  ivould  have  his  blood  !  And  again,  the  prisoner  remaining  in  the 
62 


978  MUKDEE. 

room  after  the  rest  of  the  company  liad  retired,  and  calling  back  the 
deceased  by  the  contemptuous  appellation  of  young  man,  on  pretence 
of  having  something  to  say  to  him,  altogether  showed  such  strong 
proof  of  deliberation  and  coolness,  as  jDrccluded  the  presumption  of 
passion  being  continued  down  to  the  time  of  the  mortal  stroke. 
Though  even  that  would  not  have  availed  the  prisoner  under  these 
circumstances,  for  it  must  have  been  implied,  according  to  li.v.  Maw- 
gridge  (Kel.  128),  that  he  acted  upon  malice,  liaving  in  the  iirst 
instance,  before  any  provocation  received,  and  without  warning  or 
giving  time  for  preparation  on  the  part  of  the  deceased,  made  a  deadly 
assault  upon  him.  1  East,  P.  C  254.  The  following  case  will  illus- 
trate the  doctrine  in  question.  The  deceased  was  requested  by  his 
mother  to  turn  the  prisoner  out  of  her  house,  which,  after  a  short 
struggle,  he  effected,  and  in  doing  so  gave  him  a  kick.  On  the 
*7'-q"|  ^prisoner  leaving  the  house,  he  said  to  the  deceased,  "  he  would 
J  make  him  remember  it,"  and  instantly  went  up  the  street  to  his 
own  lodging,  which  was  distant  from  two  to  three  hundred  yards,  where 
he  was  heard  to  go  to  his  bed-room,  and,  through  an  adjoining  kitchen, 
to  a  jiantry,  and  thence  to  return  hastily  ba(!k  again  by  the  same  way, 
to  the  street.  In  the  pantry  the  prisoner  had  a  sharp  butcher's  knife 
with  which  he  usually  ate.  He  had  also  three  similar  knives  there, 
which  he  used  in  his  trade  of  a  butcher.  About  five  minutes  after 
the  prisoner  had  left  the  deceased  the  latter  followed  him  for  the  pur- 
pose of  giving  him  his  hat,  which  he  had  left  behind  him,  and  they  met 
about  ten  yards  distant  from  the  prisoner's  lodgings.  They  stopped  for 
a  short  time,  and  were  heard  talking  together,  but  without  any  words 
of  anger,  by  two  persons  who  went  by  them,  the  deceased  desiring 
the  prisoner  not  to  come  down  to  his  mother's  house  that  night,  and 
the  prisoner  insisting  that  he  would.  After  they  had  walked  on 
together  for  about  fifteen  yards,  in  the  direction  of  the  mother's 
house,  the  deceased  gave  the  prisoner  his  hat,  when  the  latter  ex- 
claimed, with  an  oath,  that  he  would  have  his  rights,  and  instantly 
stabbed  the  deceased  with  a  knife  or  some  sharp  instrument  in  two 
places,  giving  him  a  sharp  wound  on  the  shoulder,  and  a  mortal 
wound  in  the  belly.  As  soon  as  the  prisoner  had  stabbed  the  de- 
ceased a  second  time,  he  said  he  had  served  him  right,  and  instantly 
ran  back  to  his  lodgings,  and  was  heard,  as  before,  to  pass  hastily 
through  his  bed-room  and  kitchen  to  the  pantry,  and  thence  back  to 
the  bed-room,  where  he  went  to  bed.  No  knife  was  found  upon  him, 
and  the  several  knives  appeared  the  next  morning  in  their  usual 
places  in  the  pantry.  Tindal,  C.  J.,  told  the  jury  that  the  jjrincipal 
question  for  their  consideration  would  be,  whether  the  mortal  wound 
was  given  by  the  prisoner,  while  smarting  under  a  provocation  so  re- 
cent and  so  strong,  that  he  might  not  be  considered  at  the  moment 
the  master  of  his  own  understanding :  in  which  case,  the  law,  in 
compassion  to  human  infirmity,  would  hold  the  offence  to  amount  to 
manslaughter  only  ;  or  whether  there  had  been  time  for  the  blood  to 
cool,  and  for  reason  to  resume  its  seat,  before  the  mortal  wound  was 
given ;    in  which  case  the  crime  would  amount  to  wilful  murder. 


MURDER.  979 

That,  in  determining  this  question,  the  most  favorable  circumstance 
for  the  prisoner  was  the  shortness  of  time  which  elapsed  between  the 
original  quarrel  and  the  stabbing  of  the  deceased ;  but,  on  the  other 
side,  the  jury  must  recollect  that  the  weapon  which  inflicted  the  fatal 
wound  was  not  at  hand  when  the  quarrel  took  place,  but  was  sought 
for  by  the  prisoner  from  a  distant  place.  It  would  be  for  them  to 
say,  whether  the  prisoner  had  sliown  thought,  contrivance,  and  de- 
sign, in  the  mode  of  possessing  himself  of  this  weapon,  and  again  re- 
placing it  immediately  after  the  blow  was  struck  :  for  the  exercise  of 
contrivance  and  design  denoted  rather  the  presence  of  judgment  and 
reason  than  of  violent  and  ungovernable  passion.  The  jury  found  the 
prisoner  guilty  of  murder.  R.  v.  Hay  ward,  6  C.  &  P.  157,  25  E. 
C.  L. 

"  If  a  person  receives  a  blow,  and  immediately  avenges  it  with  any 
instrument  that  he  may  happen  to  have  in  his  hand,  then  the  offence 
will  be  only  manslaughter,  provided  the  blow  is  to  be  attributed  to 
the  passion  of  anger  arising  from  that  previous  provocation,  for  anger 
is  a  passion  to  which  good  and  bad  men  are  both  subject.  But  the 
law  requires  two  things  :  first,  that  there  should  be  that  provocation  ; 
and  secondly,  that  the  fatal  blow  should  be  clearly  traced  to  the 
influence  of  passion  arising  from  that  provocation."  Per  Parke,  B., 
*R.  V.  Thomas,  7  C.  &  P.  817,  32  E.  C.  L.  In  the  same  case  p^g^ 
the  learned  baron  held,  tiiat,  if  from  the  circumstances  it  ap-  L 
peared  that  the  party,  before  any  provocation  given,  intended  to  use  a 
deadly  weapon  towards  any  one  who  might  assault  him,  this  would 
show  that  a  fatal  blow  given  afterwards  to  a  person  who  struck  hira 
ought  not  to  be  attributed  to  the  provocation,  and  the  crime  would 
therefore  be  murder.     And  see  next  heading. 

The  prisoner  was  charged  with  the  wilful  murder  of  his  son,  John 
Kirkham,  by  stabbing  him  with  a  knife.  A  witness  named  Chorlton 
stated,  "  I  was  alarmed  on  the  morning  of  Saturday,  the  24th  of  June, 
at  about  four  o'clock,  and  got  up.  On  entering  the  prisoner's  house 
I  saw  the  prisoner  and  his  son  on  the  floor ;  the  son  was  uppermost, 
and  they  were  wrestling  together.  I  asked  the  deceased  to  get  up ; 
he  did  so,  and  went  to  the  door.  The  prisoner  then  took  up  a  coal-pick 
(a  sort  of  small  pick-axe),  which  must  have  been  in  the  room,  as  he 
did  not  leave  the  room  to  get  it.  The  prisoner  threw  the  coal-pick 
at  his  son,  which  struck  him  on  the  back.  The  deceased  said  it  hurt 
him,  and  the  prisoner  said  he  would  have  his  revenge.  The  coal-pick 
flew  into  the  street,  and  the  deceased  fetched  it,  and  tossed  it  into  the 
house,  but  not  at  the  prisoner.  The  deceased  stood  at  the  door  Math 
his  hands  against  it,  when  the  prisoner  took  a  knife  off  the  table, 
and  jobbed  the  deceased  with  it  on  the  left  side.  The  deceased  said, 
*  Father,  you  have  killed  me !'  and  retreated  a  few  paces  into  the 
street,  reeling  as  he  went.  I  told  the  prisoner  he  had  stabbed  his  son. 
He  said,  '  Joe,  I  will  have  my  revenge.'  The  deceased  came  into  the 
house  again,  and  the  prisoner  stabbed  the  deceased  again  in  the  left 
side.  The  deceased  died  at  seven  o'clock  the  same  morning.  I  think 
from  my  first  going  to  the  house  till  the  fatal  blow  was  struck  was  about 


980  MURDER. 

twenty  minutes."  A  female,  named  Wagstaflfe,  was  also  examined,  who 
said,  *'  I  saw  the  prisoner  on  the  Monday  l)ef()re  the  death  of  his  son. 
He  came  to  my  house  drunk,  and  said  he  had  lost  his  wife,  and  that 
he  and  his  wife  had  been  quarrelling  the  Saturday  before,  and  if  his 
son  John  came  over  the  door-sill  again  he  Avould  be  his  butcher.  He 
said  his  son  took  his  mother's  jiart.  I  introduced  the  name  of  the 
deceased  by  saying  that  if  he  beat  his  wife  his  son  would  take  licr  j^art, 
and  it  was  upon  that  he  used  the  expressions  as  to  the  deceased.  On 
the  evening  before  the  deceased  was  killed  I  saw  the  prisoner  again  ; 
he  was  rather  tipsy ;  I  Avas  talking  to  his  wife,  who  went  away  when 
he  came  up.  He  said,  if  his  wife  talked  to  me  he  would  hit  her,  and 
he  added,  '  To-morrow  is  the  day  of  execution,  and  that  day  I  shall 
finish  their  hash.'  I  told  him  if  he  was  sober  he  would  not  say  so  ; 
ta  this  he  made  no  reply.  I  begged  him  to  be  quiet,  and  he  went 
into  his  own  house."  In  her  cross-examination,  this  witness  stated  that 
the  threat,  "  I  will  be  your  butcher,"  is  a  common  threat  in  that  part 
of  the  country.  Coleridge,  J.,  told  the  jury,  after  observing  on  the 
declarations  of  the  prisoner  spoken  to  by  the  last  witness,  which  he 
did  not  think  entitled  to  much  consideration  :  "  Then  I  will  suppose 
that  all  this  was  purely  unpremeditated  till  Chorlton  came,  and  then 
the  case  will  stand  thus  : — the  father  and  son  have  a  quarrel ;  the  son 
gets  the  father  down,  the  son  has  the  best  of  it,  and  the  father  has 
received  considerable  provocation  ;  and  if,  when  he  got  up,  and  threw 
the  pick  at  the  deceased,  he  had  at  once  killed  him,  I  should  have 
said  at  once  that  it  was  manslaughter.  Now  comes  the  more  im- 
portant  question  (the  son  having  given  no  further  provocation), 
whetlier  in  truth  that  which  was  in  the  first  instance  sufficient 
*78n  *provocation,  v/as  so  recent  to  the  actual  deadly  blow,  that  it 
-J  excused  the  act  that  was  done ;  and  whether  the  father  was  act- 
ing under  the  recent  sting,  or  had  had  time  to  cool,  and  then  took  up 
the  deadly  weapon.  I  told  you  just  now  he  must  be  excused  if  the 
provocation  was  recent,  and  he  acting  under  its  sting,  and  the  blood 
remained  hot ;  but  you  must  consider  all  the  circumstances,  the  time 
which  elapses,  the  prisoner's  previous  conduct,  the  deadly  nature  of 
the  weapon,  the  repetition  of  the  blows,  because  though  the  law  con- 
descends to  human  frailty,  it  will  not  indulge  human  ferocity."  The 
prisoner  was  found  guilty  of  manslaughter.  R.  v.  Kirkham,  8  C.  &  P. 
115,  34  E.  C.  L. 

The  prisoner,  who  was  charged  with  murder,  was  a  private  of  the 
Coldstream  Guards,  and  was  discharged  on  the  11th  October,  and  on 
the  evening  of  that  day  went  to  the  Three  Horseshoes,  at  Hampstead, 
in  company  with  a  person  named  Burkill  and  his  brother,  Richard 
Smith,  There  were  two  more  soldiers  in  the  public-house,  and  the 
deceased,  James  Chaplain,  was  sitting  with  them.  A  dispute  arose 
about  paying  the  reckoning,  and  a  fight  took  place  between  the  pris- 
oner and  a  man  named  Burrows.  In  the  scuffle  the  deceased  jumped 
over  the  table  and  struck  the  jirisoner.  The  deceased  was  turned  out 
by  the  landlord,  but  admitted  again  in  about  ten  minutes,  and  the 
parties  all  remained  drinking  together  after  that  for  a  quarter  of  an 


MURDER.  981 

hour,  when  the  prisoner  and  his  brother  went  out.  The  deceased  re- 
mained about  a  quarter  of  an  hour  after  the  prisoner,  and  then  left. 
Tiie  prisoner  and  deceased  were  both  in  liquor.  The  deceased  tried 
to  get  out  directly  after  the  prisoner  and  his  brother  left,  but  was  de- 
tained by  persons  in  the  room.  As  soon  as  they  let  him  go,  he  jumped 
over  the  table,  and  went  out  of  the  house,  saying,  as  he  went,  that  if 
he  caught  them  he  would  serve  them  out.  The  deceased  was  a  person 
who  boasted  of  his  po^vers  as  a  fighter.  The  deceased  followed  the 
prisoner  and  his  brother  into  a  mews  not  far  from  the  public-house 
where  they  had  been  drinking ;  and  a  witness  who  had  lived  near 
stated  that  he  heard  a  noise,  and  went  to  the  door  of  his  house,  and  then 
heard  a  bayonet  fall  on  the  ground,  and  on  going  out  into  Church-lane, 
heard  a  person,  named  Croft,  crying  out  "  Police !  police  !  a  man  is 
stabbed  !"  and  on  going  up,  found  the  deceased  lying  on  the  ground 
wounded.  Croft  stated,  that  he  was  in  Field-place,  near  Church-lane, 
and  heard  voices,  which  induced  him  to  run  towards  a  bar  there,  and 
when  within  a  yard  of  the  bar  he  heard  a  blow  like  the  blow  of  a  fist ; 
this  was  followed  by  other  blows.  After  the  blows,  he  heard  a  voice 
say,  "  Take  that,"  and  in  half  a  minute,  to  the  best  of  his  judgment, 
the  same  voice  said,  "  He  has  stabbed  me  !"  The  wounded  man  then 
ran  towards  him,  and  he  discovered  it  to  be  the  deceased.  He  said 
"I  am  stabbed,"  three  times,  and  soon  after  fell  on  the  ground;  the 
prisoner  was  soon  after  taken  into  custody,  and  was  then  bleeding  at 
the  nose.  The  prisoner  had  not  any  side  arms ;  but  his  brother,  who 
was  with  him,  had  a  bayonet.  For  the  defence,  the  prisoner's  brother 
was  called  as  a  witness,  and  stated,  when  they  had  got  about  twenty 
yards  through  the  bar  mentioned  in  Croft's  evidence,  he  heard  some- 
body say  something,  but  did  not  take  notice  of  it,  and  deceased  came 
up  and  struck  him  on  the  back  of  the  head,  which  caused  him  to  fall 
down,  and  his  bayonet  fell  out  of  the  sheath  upon  the  stones,  and  the 
deceased  picked  it  up,  and  followed  the  prisoner,  who  had  gone  on ; 
there  was  a  great  struggle  between  them,  and  very  shortly  after  the 
deceased  cried  out  "  I  am  stabbed  !  I  am  stabbed  !"  A  surgeon  was 
also  called  *who  proved  that  there  were  wounds  on  the  pris-  r*7Qo 
oner's  hands  such  as  would  be  made  by  stabs  of  a  bayonet,  ^ 
and  that  his  back  was  one  uniform  bruise.  Bosanquet,  J.,  in  sum- 
ming up,  to  the  jury,  said,  "  Did  the  prisoner  enter  into  a  contest 
with  an  unarmed  man,  intending  to  ava'l  himself  of  a  deadly  weapon  ? 
for  if  he  did,  it  will  amount  to  murder ;  but  if  he  did  not  enter  into 
the  contest  with  the  intention  of  using  it,  then  the  question  will  be, 
Did  he  use  it  in  the  heat  of  passion,  in  consequence  of  an  attack  made 
upon  him  ?  if  he  did,  then  it  will  be  manslaughter.  But  there  is  an- 
other question.  Did  he  use  the  weapon  in  defence  of  his  life  ?  Before 
a  person  can  avail  himself  of  that  defence,  he  must  satisfy  the  jury 
that  that  defence  was  necessary ;  that  he  did  all  he  could  to  avoid  it, 
and  that  it  was  necessary  to  protect  his  own  life,  or  to  protect  him- 
self from  such  serious  bodily  harm  as  would  give  reasonable  appre- 
hension that  his  life  was  in  immediate  danger.  If  he  used  the  weapon, 
having  no  other  means  of  resistance,  and  no  means  of  escape,  in  such 


982  MURDEK. 

case,  if  he  retreated  as  far  as  he  could,  he  will  be  justified."  The 
prisoner  was  found  guilty  of  manslaughter,  but  strongly  recommended 
to  mercy.     K.  v.  Smith,  8  C:  &  P.  160,  34  E.  C.  L. 

Proof  of  malice — drunkenness.  It  has  been  held  by  Park  and 
Littledale,  J  J.,  that  R.  v.  Grindley,  1  Russ.  Cri.  114,  5th  ed.,  in 
which  Holroyd,  J.,  ruled  that  though  voluntary  drunkenness  cannot 
excuse  for  the  commission  of  crime,  yet  where,  as  upon  a  charge  of 
murder,  the  question  is  whether  an  act  is  premeditated  or  not,  or 
done  only  from  sudden  heat  or  impulse,  the  fact  of  the  party  being 
intoxicated  was  a  circumstance  proper  to  be  taken  into  consideration, 
is  not  law.  R.  v.  Carroll,  7  C.  &  P._  145,  32  E.  C.  L.^  See  post,  tit. 
"  Insanity — cases  caused  by  intoxication."  It  would  seem  that  where 
the  very  essence  of  the  crime  is  the  intention  with  which  the  act  is 
done,  it  may  be  left  to  the  jury  to  say  whether  the  prisoner  was  so  drunk 
as  not  to  be  capable  of  forming  any  intention  whatever,  and  if  so 
they  may  acquit  him  of  the  intent.  R.  v.  Cruse,  8  C.  &  P.  541,  34 
E.  C.  L.  R.  V.  Monkhouse,  4  Cox,  C.  C.  55.  Where  the  prisoner 
was  indicted  for  stabbing  with  a  fork  with  intent  to  murder,  and  it 
appeared  that  he  was  in  liquor,  Alderson,  B.,  said,  "  If  a  man  uses  a 
stick,  you  would  not  infer  a  malicious  intent  so  strongly  against  him, 
if  drunk,  when  he  made  an  intemperate  use  of  it,  as  you  would  if  he 
had  used  a  diiferent  kind  of  weapon ;  but  where  a  dangerous  weapon 
is  used,  which,  if  used,  must  produce  grievous  bodily  harm,  drunken- 
ness can  have  no  effect  on  the  consideration  of  the  malicious  intent  of 
the  party."  R.  v.  Meakiu,  7  C.  &  P.  297,  32  E.  C.  L.  In  R.  v, 
Thomas,  Id.  817,  which  was  also  an  indictment  for  maliciously  stab- 
bing, Parke,  B.,  told  the  jury,  that  "  drunkenness  may  be  taken  into 
consideration  in  cases  where  what  the  law  deems  sufficient  provocation 
has  been  given,  because  the  question  is  in  such  cases,  whether  the  fatal 
act  is  to  be  attributed  to  the  passion  of  anger  excited  by  the  previous 
provocation,  and  that  passion  is  more  easily  excitable  in  a  person 
when  in  a  state  of  intoxication  than  when  he  is  sober.  So  where 
the  question  is,  whether  words  have  been  uttered  with  a  deliberate 
purpose,  or  are  merely  low  and  idle  expressions,  the  drunkenness 
of  the  person  uttering  them  is  proper  to  be  considered.  But 
if  there  is  really  a  previous  determination  to  resent  a  slight 
affront  in  a  barbarous  manner,  the  state  of  drunkenness  in  which 
*7R'\\  **^^^  prisoner  was  ought  not  to  be  regarded,  for  it  would  fur- 
■^    nish  no  excuse." 

^  Voluntary  intoxication  is  no  defence.  State  v.  Sneed,  88  Mo.  138  ;  but  where  the 
offence  is  divisible  into  degrees  it  is  admissible  to  determine  how  the  act  was  affected 
by  volition.  Colbath  v.  State,  4  Tex.  App.  76  ;  Brown  v.  State,  Id.  275  ; '  McCarty  v. 
State,  Id.  461  ;  Ba>Tie  v.  State,  5  Tex.  App.  35 ;  Pocket  v.  State,  Id.  552 ;  People  v. 
Odell,  1  Dak.  Ter.  197.  The  fact  of  intoxication,  no  matter  how  complete  and  over- 
powering, is  not  conclusive  evidence  of  the  absence  of  an  intent  to  take  life.  State 
V.  White,  14  Kan.  538.  But  see  Smith  v.  State,  4  Neb.  277.  The  fact  of  intoxication 
is  admissible  to  show  that  no  crime  has  been  committed,  or  to  show  the  degree  or 
grade  of  crime:  thus  in  a  prosecution  for  shooting  with  intent  to  wound,  evidence  is 
admissible  to  prove  that  defendant  was  so  much  intoxicated  that  he  could  not  form  or 
have  such  an  intent.     Cline  v.  State,  43  Ohio  St.  332. 


MUEDER.  983 

Proof  of  malice — provocation — express  malice.  As  evidence  of 
provocation  is  only  an  answer  to  that  presumption  of  malice  which 
the  law  infers  in  every  case  of  homicide,  if  there  is  proof  of  express 
malice  at  the  time  of  the  act  committed,  the  provocation  will  not 
reduce  the  offence  from  murder  to  manslaughter.^  In  such  a  case,  not 
even  previous  blows  or  struggling  will  reduce  the  offence  to  homicide. 
1  Russ.  on  Cri.  643,  5th  ed.  This  rule  is  illustrated  by  the  following 
case  :  Richard  Mason  was  indicted  and  convicted  for  the  wilful  murder 
of  William  Mason,  his  brother  ;  but  execution  was  respited  to  take  the 
opinion  of  the  judges,  upon  a  doubt  whether,  under  the  circumstances 
given  in  evidence,  the  offence  amounted  to  murder  or  manslaughter. 
The  prisoner,  with  the  deceased  and  some  neighbors,  were  drinking 
in  a  friendly  manner  at  a  public-house,  till  growing  warm  in  liquor, 
but  not  intoxicated,  the  prisoner  and  the  deceased  began  in  idle  sport 
to  push  each  other  about  the  room.  They  then  wrestled  one  fall, 
and  soon  afterwards  played  at  cudgels  by  agreement.  All  this  time  no 
tokens  of  anger  appeared  on  either  side,  till  the  prisoner,  in  the  cudgel 
play,  gave  the  deceased  a  smart  blow  on  the  temple.  The  deceased 
thereupon  grew  angry,  and  throwing  away  his  cudgel,  closed  with 
the  prisoner,  and  they  fought  a  short  time  in  good  earnest ;  but  the 
company  interposing,  they  were  soon  parted.  The  prisoner  then 
quitted^the  room  in  anger ;  and  when  he  got  into  the  street  was  heard 
to  say,  "Damnation  seize  me,  if  I  do  not  fetch  something  and  stick 
him;"  and  being  reproved  for  such  expressions,  he  answered,  "  I'll 
be  damned  to  all  eternity  if  I  do  not  fetch  something  and  run  him 
through  the  body."  The  deceased  and  the  remainder  of  the  company 
continued  in  the  room  where  the  affray  happened  :  and  in  about  half 
an  hour  the  prisoner  returned,  having  in  the  meantime  changed  a 
slight  for  a  thicker  coat.  The  door  of  the  room  being  open  to  the 
street,  the  prisoner  stood  leaning  against  the  doorpost,  his  left  hand 
in  his  bosom,  and  a  cudgel  in  hig  right ;  looking  in  upon  the  company, 
but  not  speaking  a  word.  The  deceased  seeing  him  in  that  posture 
invited  him  into  the  company  ;  but  the  prisoner  answered,  "  I  will  not 
come  in."  "  Why  will  you  not  ?"  said  the  deceased.  The  prisoner 
replied,  "  Perhaps  you  may  fall  on  me,  and  beat  me."  The  deceased 
assured  him  he  would  not,  and  added,  "  Besides,  you  think  yourself 
as  good  a  man  as  me  at  cudgels ;  perhaps  you  will  play  at  cudgels 
with  me."     The  prisoner  answered,  "  I  am  not  afraid  to  do  so,  if  you 

^  When  a  deliberate  purpose  to  kill  or  do  great  bodily  harm  is  entertained,  and 
there  is  a  consequent  unlawful  act  of  killing,  the  provocation,  whatever  it  may  be, 
which  immedi;itely  precedes  the  act,  is  to  be  thrown  out  of  the  case  and  goes  for  noth- 
ing, unless  it  can  be  shown  that  this  purpose  was  abnndoned  before  the  act  was  done. 
State  V.  Johnson,  1  Ired.  354;  State  v.  Lane,  4  Id.  113.  [But  see  State  v.  Barnwell, 
80  N.  C.  4(36.]  When  there  is  express  malice,  no  amount  of  provocation  will  make 
the  killing  manslaughter.  Riggs  v.  State,  30  Miss.  635  ;  Ex  parte  Wray,  Id.  673 ;  Cot- 
ton V.  State,  31  Id.  504.     See  Quarles  v.  State,  1  Sneed.  407.     S. 

Express  malice  may  be  shown  not  only  by  words  and  declarations,  but  by  circum- 
stances, the  instrument  used,  the  cliaracter  of  the  blow,  and  the  deliberation  used  in 
planning  it.  Singleton  v.  State,  1  Tex.  App.  501 ;  State  v.  Matthews,  80  N.  C.  417  ; 
Fisher  v.  vState,  77  Ind.  42.  Where  the  State  thus  shows  malice,  it  may  be  relmtted 
by  evidence  that  defendant  acted  as  he  did  in  anticipation  of  an  attack.  Long  r.  State, 
52  Miss.  23. 


98-4  MUEDER. 

will  keep  off  your  fists."  Upon  these  words  the  deceased  got  up,  and 
went  towards  the  prisoner,  who  dropped  the  cudgel  as  the  deceased 
was  coming  up  to  him.  The  deceased  took  up  the  cudgel,  ajid  with 
it  gave  the  prisoner  two  blows  on  the  shoulder.  The  prisoner  im- 
mediately put  his  right  hand  into  his  bosom,  and  drew  out  the  blade 
of  a  tuck-sword,  crying,  *'  Damn  you,  stand  off,  or  I'll  stab  you  !" 
and  immediately,  without  giving  the  deceased  time  to  stand  off,  made 
a  pass  at  him  with  the  sword,  but  missed  him.  The  deceased  there- 
upon gave  back  a  little,  and  the  prisoner,  shortening  the  sword  in  his 
hand,  leaped  forward  towards  the  deceased,  and  stabbed  him  to  the 
heart,  and  he  instantly  died.  The  Judges,  at  a  conference,  uuanimously 
agreed,  "  that  there  are  in  this  case  so  many  circumstances  of  delib- 
erate malice  and  deep  revenge  on  the  prisoner's  part,  that  his  offence 
*7«zLl  *cannot  be  less  than  wilful  murder."  R.  v.  Mason,  Foster,  132; 
'^^-1   1  East,  P.  C.  239. 

Proof  of  malice — cases  of  mutual  combat.  The  rules  with  regard 
to  the  proof  of  malice,  in  case  of  mutual  combat,  are  not  in  all 
respects  the  same  with  those  which  have  been  already  stated  with 
regard  to  cases  of  provocation  in  general,  and  as  the  former  are  of 
very  frequent  occurrence  it  may  be  convenient  to  consider  them  under 
one  head. 

In  this  class  of  cases  the  degree  or  species  of  provocation  does  not 
enter  so  deeply  into  the  merits  of  the  question,  as  in  those  which 
have  been  just  noticed,  and  in  the  former  it  has  been  held  that  where 
upon  words  of  reproach,  or  indeed  any  other  sudden  provocation,  the 
parties  come  to  blows,  and  a  combat  ensues,  no  undue  advantage 
being  taken,  or  sought  on  either  side,  if  death  ensue,  this  amounts  to 
manslaughter  only.  Nor  is  it  material  what  the  cause  be,  whether 
real  or  imagined,  or  who  draws  or  strikes  first,  provided  the  occasion 
be  sudden,  and  not  urged  as  a  cloak  for  pre-existing  malice.  1  East, 
P.  C,  241.'  Many,  says  Lord  Hale,  who  were  of  opinion  that  bare 
words  of  slighting,  disdain  or  contumely,  would  not  of  themselves 
make  such  a  provocation  as  to  lessen  the  crime  into  manslaughter, 
were  yet  of  this  opinion,  that  if  A.  gives  indecent  language  to  B., 
and  B.  thereupon  strikes  A.,  but  not  mortally,  and  then  A.  strikes  B. 
again,  and  B.  kills  A.,  this  is  manslaughter  ;  for  the  second  stroke 
made  a  new  provocation,  and  so  it  was  but  a  sudden  falling  out ;  and 
though  B.  gave  the  first  stroke,  and  after  a  blow  received  from  A.,  B. 
gives  him  a  mortal  stroke,  this  is  but  manslaughter ;  according  to  the 
proverb,  the  second  bloiv  makes  the  affray ;  and  this,  adds  Lord  Hale, 
was  the  opinion  of  myself  and  others.  1  Hale,  P.  C.  456  ;  Foster, 
295.  But  if  B.  had  drawn  his  sword,  and  made  a  pass  at  A.,  his 
sword  then  undrawn,  and  thereupon  A.  had  drawn,  and  a  combat  had 
ensued,  in  which  A.  had  been  killed,  this  would  have  been  murder; 
for  B.  by  making  his  pass,  his  adversary^ s  sword  undraivn,  showed  that 
he  sought  his  blood,  and  A.'s  endeavor  to  defend  himself,  which  he 

1  Burnham  i..  Slate,  43  Tex.  322. 


MURDER.  985 

had  a  right  to  do,  will  not  excuse  B.  But  if  B.  had  first  drawn  and 
forborne  till  his  adversary  had  drawn  too,  it  had  been  no  more  than 
manslaughter.     Foster,  295  ;  1  East,  P.  C.  242. 

With  regard  to  the  use  of  deadly  weapons  as  in  case  of  mutual 
combat,  the  rule  was  laid  down  by  Mr.  Justice  Bayley,  in  the  follow- 
ing ease.  The  prisoner  and  Levy  quarrelled,  and  went  out  to  fight. 
After  two  rounds,  which  occupied  little  more  than  two  minutes, 
Levy  was  found  to  be  stabbed  in  a  great  many  places,  and  of  one  of 
those  stabs  he  almost  instantly  died.  It  appeared  that  nobody  could 
have  stabbed  him  but  the  prisoner,  who  had  a  clasp  knife  before 
the  affray.  Bayley,  J.,  told  the  jury,  that  if  the  prisoner  used  the 
knife  privately  from  the  beginning,  or  if,  before  they  began  to  fight, 
he  placed  the  knife  so  that  he  might  use  it  during  the  aifray,  and 
used  it  accordingly,  it  was  murder ;  but  that  if  he  took  to  the  knife 
after  the  fight  began,  and  without  having  placed  it  to  be  ready  during 
the  affray,  it  was  only  manslaughter.  The  jury  found  the  prisoner 
guilty  of  murder.  R.  v.  Anderson,  1  Russ.  Cri.  701,  5th  ed.  Another 
later  case  exhibited  nearly  similar  circumstances.  The  prisoner 
returning  home,  was  overtaken  by  the  prosecutor.  They  were  both 
intoxicated,  and  a  quarrel  ensuing  the  prosecutor  struck  the  prisoner 
a  blow.  They  fought  for  a  few  minutes,  when  the  prisoner  ran  back 
*a  short  distance,  and  the  prosecutor  pursued  and  overtook  r:(c7oK 
him.  On  this  the  prisoner,  who  had  taken  out  his  knife,  gave  L 
the  prosecutor  a  cut  across  the  abdomen.  The  prisoner  being  indicted 
for  cutting  the  prosecutor  with  intent  to  murder  him,  Parke,  J.,  left  it 
to  the  jury  whether  the  prisoner  ran  back  with  a  malicious  intention 
of  getting  out  his  knife  to  inflict  an  injury  on  the  prosecutor,  and  so 
gain  an  advantage  in  the  conflict ;  for  if  he  did,  notwithstanding  the 
previous  fighting  between  them  on  equal  terms,  and  the  prosecutor 
having  struck  the  first  blow,  he  was  of  opinion  that  if  death  had  en- 
sued, the  crime  of  the  prisoner  would  have  been  murder ;  or  whether 
the  imsoner  bond  fide  ran  away  from  the  prosecutor  with  intent  to  es- 
cape from  an  adversary  of  superior  strength,  but  finding  himself  pur- 
sued, drew  his  knife  to  defend  himself;  and  in  the  latter  case,  if  the 
prosecutor  had  been  killed,  it  would  have  been  manslaughter  only. 
E,.  V.  Kessal,  1  C.  &  P.  437.  In  the  following  case  the  use  of  a  deadly 
weapon  during  a  fight  was  held  to  be  no  evidence  of  malice,  the  pris- 
oner happening  to  have  the  knife  in  his  hand  at  the  commencement  of 
the  affray.  William  Snow  was  indicted  for  the  murder  of  Thomas 
Palmer.  The  prisoner,  Avho  was  a  shoemaker,  lived  in  the  neighbor- 
hood of  the  deceased.  One  evening  the  prisoner,  who  was  much  in 
liquor,  passed  accidentally  by  the  house  of  the  deceased's  mother, 
near  which  the  deceased  was  at  work.  He  had  a  quarrel  with  him 
there,  and  after  high  words  they  were  going  to  fight,  but  were  pre- 
vented by  the  mother,  who  hit  the  prisoner  in  the  face  and  threw 
water  over  him.  The  prisoner  went  into  his  house,  but  came  out  in 
a  few  minutes,  and  set  himself  down  upon  a  bench  before  his  gate, 
with  a  shoemaker's  knife  in  his  hand,  paring  a  shoe.  The  deceased, 
on  finishing  his  work,  returned  home  by  the  prisoner's  house,  and 


986  MURDER. 

called  out  to  him  as  he  passed,  "  Are  not  you  an  aggravating  rascal  ?'' 
The  prisoner  replied,  "  What  will  you  be  when  you  are  got  from  your 
master's  feet?"  on  which  the  deceased  took  the  prisoner  by  the  collar, 
and  dragging  him  off  the  bench,  they  both  rolled  into  the  cart-way. 
While  they  were  struggling  and  fighting,  the  prisoner  underneath  the 
deceased,  the  latter  cried  out,  "You  rogue,  what  do  you  do  with  that 
knife  in  your  hand  ?"  and  caught  at  his  arm  to  secure  it;  but  the 
prisoner  kept  his  hand  striking  about,  and  held  tiie  deceased,  so  hard 
with  his  other  hand  that  he  could  not  get  away.  The  deceased,  how- 
ever, at  length  made  an  effort  to  disengage  himself,  and  during  the 
struggle  received  the  mortal  wound  in  his  left  breast,  having  before 
received  two  slight  wounds.  The  jury  found  the  prisoner  guilty  of 
murder;  but  judgment  was  respited  to  take  the  ojiinion  of  the 
judges,  who  (in  the  absence  of  De  Grey,  C.  J.),  were  unanimously 
of  opinion  that  it  was  only  manslaughter.  They  thought  that  there 
was  not  sufficient  evidence  that  the  prisoner  lay  in  wait  for  the  de- 
ceased with,  a  malicious  design  to  provoke  him,  and  under  that  color 
to  revenge  his  former  quarrel  by  stabbing  him,  which  would  have 
made  it  murder.  On  the  contrary,  he  had  composed  himself  to  work 
at  his  own  door,  in  a  summer's  evening  ;  and  when  the  deceased 
passed  by  provoked  him  neither  by  word  nor  by  gesture.  The  de- 
ceased began  first  by  ill  language,  and  afterwards  by  collaring  him 
and  dragging  him  from  his  seat,  and  rolling  him  in  the  road.  The 
knife  was  used  openly,  before  the  deceased  came  by,  and  not  con- 
cealed from  the  bystanders  ;  though  the  deceased  in  his  passion  did 
not  perceive  it  till  they  were  both  down ;  and  though  the  prisoner 
was  not  justified  in  using  such  a  weapon  on  such  an  occasion,  yet  it 
*7«n  *being  already  in  his  hand,  and  the  attack  upon  him  very  vio- 
-•  lent  and  sudden,  they  thought  it  only  amounted  to  manslaugh- 
ter, and  he  was  recommended  for  a  pardon.  R.  v.  Snow,  1  East,  P. 
C.  244,  245. 

Not  only  will  the  premeditated  use  of  deadly  weapons,  in  cases  of 
mutual  combat,  render  the  homicide  murder,  but  the  combat  itself  may 
be  of  such  a  nature  as  to  make  it  murder  if  death  ensue.  The  pris- 
oner was  indicted  for  manslaughter,  and  the  evidence  was,  that  he  and 
the  deceased  were  "  fighting  up  and  down,"  a  brutal  and  savage  prac- 
tice in  the  north  of  England.  Bayley,  J.,  said  to  the  jury,  fighting 
"up  antl  dowai"  is  calculated  to  produce  death,  and  the  foot  is  an  in- 
strument likely  to  produce  death.  If  death  happens  in  a  fight  of  this 
description  it  is  murder,  and  not  manslaughter.  The  prisoner  being 
convicted,  Bayley,  J.,  told  him  that  if  he  had  been  charged  with  mur- 
der, the  evidence  adduced  w^ould  liave  sustained  the  indictment.  11.  v. 
Thorpe,  1  Lewin,  C.  C.  171  ;  see  R.  v.  Murphy,  6  C.  &  P.  103,  25 
E.  C.  L. 

In  order  to  bring  the  case  within  the  rule  relating  to  mutual  com- 
bats, so  as  to  lessen  the  crime  to  manslaughter,  it  must  appear  that  no 
undue  advantage  was  sought  or  taken  on  either  side.  Foster,  295. 
To  save  the  party  making  the  first  assault  upon  an  insufficient  legal 
provocation  from  the  guilt  of  murder,  the  occasion  must  not  only  be 


MURDER.  987 

sudden,  but  the  party  assaulted  must  be  upon  an  equal  footing,  in 
point  of  defence  at  least,  at  the  outset ;  and  this  is  peculiarly  requisite 
where  the  attack  is  made  with  deadly  or  dangerous  weapons.  1  East, 
P.  C.  242.  Where  persons  fight  on  fair  terms,  says  Mr.  Justice  Bay- 
ley,  "and  merely  with  fists,  where  life  is  not  likely  to  be  at  hazard, 
and  the  blows  passing  between  them  are  not  likely  to  occasion  death, 
if  death  ensues,  it  is  manslaughter  ;  and  if  persons  meet  originally  on 
fair  terms,  and  after  an  interval,  blows  having  been  given,  a  party 
draws,  in  the  heat  of  blood,  a  deadly  instrument,  and  inflicts  a  deadly 
injury,  it  is  manslaughter  only.  But  if  a  party  enters  into  a  contest 
dangerously  armed,  and  fights  under  an  unfair  advantage,  though 
mutual  blows  pass,  it  is  not  manslaughter,  but  murder."  R..  v. 
Whiteley,  1  Lewin,  C.  C.  173. 

The  lapse  of  time,  also,  which  has  taken  place  between  the  origin 
of  the  quarrel  and  the  actual  contest,  is  in  these  cases  a  subject  of 
great  consideration,  as  in  the  following  instance  : — The  prisoner  was 
indicted  for  the  wilful  murder  of  William  Harrington.  It  appeared 
that  the  prisoner  and  the  deceased,  who  had  been  for  three  or  four 
years  upon  terms  of  intimacy,  had  been  drinking  together  at  a  public- 
house,  on  the  night  of  the  27th  of  February,  till  about  twelve 
o'clock  ;  that  about  one  they  were  together  in  the  street,  when  they 
had  some  words,  and  a  scuffle  ensued,  during  which  the  deceased 
struck  the  prisoner  in  the  face  with  his  fist,  and  gave  him  a  black 
eye.  The  prisoner  called  for  the  police,  and  on  a  policeman  coming, 
went  away.  He,  however,  returned  again,  between  five  and  ten 
minutes  afterwards,  and  stabbed  the  deceased  with  a  knife  on  the 
left  side  of  the  abdomen.  The  prisoner's  father  proved  that  the 
knife,  a  common  bread  and  cheese  knife,  was  one  which  the  prisoner 
was  in  the  habit  of  carrying  about  with  him,  and  that  he  was 
rather  weak  in  his  intellect,  but  not  so  much  so  as  not  to  know  right 
from  wrong.  Lord  Tenterden,  in  summing  up,  said,  "  It  is  not  every 
slight  provocation,  even  by  a  blow,  which  will,  when  the  party  re- 
ceiving it  strikes  with  a  deadly  weapon,  reduce  the  crime  from 
murder  to  manslaughter.  But  it  depends  upon  the  time  elapsing 
*between  the  blow  and  the  injury  ;  and  also,  whether  the  in-  r^^oy 
jury  was  inflicted  with  an  instrument  at  the  moment  in  the  L 
possession  of  the  party,  or  ^vhether  he  went  to  fetch  it  from  another 
place.  It  is  uncertain,  in  this  case,  how  long  the  prisoner  was  absent. 
The  witness  says  from  five  to  ten  minutes,  according  to  the  best  of  his 
kno^vledge.  Unless  attention  is  particularly  called  to  it,  it  seems  to 
me  that  evidence  of  time  is  very  uncertain.  The  prisoner  may  have 
been  absent  less  than  five  minutes.  There  is  no  evidence  that  he 
went  anywhere  for  the  knife.  The  father  says  that  it  was  a  knife  he 
carried  about  with  him  ;  it  was  a  common  knife,  such  as  a  man  in 
the  prisoner's  situation  in  life  might  have  ;  for  aught  that  appears,  he 
might  have  gone  a  little  way  from  the  deceased,  and  then  returned 
still  smarting  under  the  blow  he  had  received.  You  will  also  take 
into  consideration  the  previous  habits  and  connection  of  the  deceased 
and  the  prisoner  in  respect  to  each  other.     If  there  had  been  any  ol(l 


988  MURDER. 

grudge  between  them,  then  the  crime  which  the  prisoner  committed 
might  be  murder.  But  it  seems  they  had  been  long  in  habits  of  inti- 
macy, and  on  the  very  night  in  question  about  an  hour  beibre  the 
blow,  they  had  been  drinking  in  a  friendly  way  together.  If  you 
think  that  there  was  not  time  and  interval  sufficient  for  the  jiassion 
of  a  man,  proved  to  be  of  no  very  strong  intellect,  to  cool,  and  for 
reason  to  regain  her  dominion  over  his  mind,  then  you  will  say  that 
the  prisoner  is  guilty  only  of  manslaughter ;  but  if  you  tliink  that 
the  act  was  the  act  of  a  wicked,  malicious,  and  diabolical  mind  (which, 
under  the  circumstances,  I  think  you  hardly  would),  then  you  will 
find  him  guilty  of  murder."  The  jury  found  the  prisoner  guilty  of 
manslaughter.     R.  v.  Lynch,  5  C.  &  P.  324,  24  E.  C.  L. 

In  cases  of  mutual  combat,  evidence  is  frequently  given  of  old 
quarrels  between  the  parties,  for  the  purpose  of  showing  that  the 
person  killing  acted  from  malice  towards  the  deceased,  but  it  is  not 
in  every  case  of  an  old  grudge  that  the  jury  will  be  justified  in  find- 
ing malice.  Thus,  where  two  persons  who  had  formerly  fouglit  in 
malice  are  after%vards,  to  all  appearance,  reconciled,  and  fight  again 
on  a  fresh  quarrel,  it  shall  not  be  presumed  that  they  were  moved  by 
the  old  grudge ;  Hawk.  P.  C.  b.  1,  c.  31,  s.  30  ;  unless  it  apj^ear  that 
the  reconciliation  was  pretended  only.  1  Hale,  P.  C.  452.  If,  says 
Lord  Plale,  A.  sues  B.,  or  threatens  to  sue  him,  this  alone  is  not  suffi- 
cient evidence  of  malice  prepense,  though  possibly  they  meet  and  ftill 
out  and  fight,  and  one  kills  the  other,  if  it  happens  upon  sudden  pro- 
vocation ;  but  this  may,  by  circumstances,  be  heightened  into  malice 
prepense,  as  if  A.,  without  any  other  provocation,  strikes  B.  upon 
account  of  that  difference  in  law,  or  lies  in  wait  to  kill  him,  or  comes 
with  a  resolution  to  strike  or  kill  him.     1  Hale,  P.  C.  451. 

If  two  parties  go  out  to  strike  one  another,  and  do  so,  it  is  an  assault 
in  both,  and  it  is  quite  immaterial  which  strikes  the  first  blow.  P.  v. 
Lewis,  1  C.  &  K.  419,  47  E.  C.  L.  All  struggles  in  anger,  whether 
by  fighting,  wrestling,  or  in  any  other  mode,  are  unlawful,  and  death 
occasioned  by  them  is  manslaughter  at  the  least.  R.  v.  Canniffj  9 
C.  &  P.  359,  38  E.  C.L. 

Proof  of  malice — eases  of  mutual  combat — duelling.'  Deliberate 
duelling,  if  death  ensues,  is  in  the  eye  of  the  law  murder ;  for  duels 
are  generally  founded  in  deep  revenge.  And  though  a  person  should 
*78Ml  *^^  drawn  into  a  duel,  not  on  a  motive  so  criminal,  but  merely 
-^  upon  the  punctilio  of  what  the  swordsmen  falsely  call  honor, 
that  will  not  excuse  him.  For  he  that  deliberately  seeks  the  blood  of 
another,  in  a  private  quarrel,  acts  in  defiance  of  all  laws,  human  and 
divine,  Avhatever  his  motive  may  be.  But  if  upon  a  sudden  quarrel 
the  parties  fight  upon  the  spot,  or  if  they  presently  fetch  their  Meap- 
ons,  and  go  into  the  field  and  fight,  and  one  of  them  falls,  it  will  be 
only  manslaughter,  because  it  may  be  presumed  that  the  blood  never 

'  The  Wisconsin  statvite  depriving  persons  tniilty  of  duelling  of  the  right  to  hold 
office,  will  support  an  indictment  for  violating  its  provisions,  but  it  is  not  self  exe- 
cuting.    Commonwealth  v.  Jones,  10  Bush,  (Ky.)  725. 


MURDER.  989 

cooled.  It  will,  however,  be  otherwise,  if  they  appoint  to  fight  the 
next  (lay,  or  even  upon  the  same  clay,  at  such  an  interval,  as  that  the 
passion  might  have  subsided,  or  if  from  any  circumstances  attending 
the  case  it  may  be  reasonably  concluded  that  their  judgment  had  act- 
ually controlled  the  first  transport  of  passion  before  they  engaged. 
The  same  rule  will  hold,  if  after  a  quarrel  they  fall  into  other  dis- 
course or  diversions,  and  continue  so  engaged  a  reasonable  time  for 
cooling.  Foster,  297.  It  seems  agreed,  says  Hawkins,  that  wherever 
two  persons  in  cool  blood  meet,  and  fight  on  a  precedent  quarrel,  and 
one  of  them  is  killed,  the  other  is  guilty  of  murder,  and  cannot  help 
himself  by  alleging  that  he  was  first  struck  by  the  deceased,  and  that 
he  had  often  declined  to  meet  him,  but  was  prevailed  upon  by  his 
importunity,  or  that  it  was  his  intention  only  to  vindicate  his  reputa- 
tion, or  that  he  meant  not  to  kill,  but  only  to  disarm  his  adversary, 
for  since  he  deliberately  engaged  in  an  act  highly  unlawful,  he  must, 
at  his  peril,  abide  the  consequences.  Hawk.  P.  C.  b.  1,  c.  31,  s.  21. 
It  is  said  by  Lord  Hale,  that  if  A.  and  B.  meet  deliberately  to  fight, 
and  A.  strikes  B.,  and  pursues  him  so  closely,  that  B.  in  safeguard  of 
his  own  life  kills  A.,  this  is  murder  in  B.,  because  their  meeting  was 
a  compact,  and  an  act  of  deliberation,  and  therefore  all  that  follows 
thereupon  is  presumed  to  be  done  in  pursuance  thereof,  and  thus  is 
Dalton  (cap.  92,  p.  241)  to  be  understood.  1  Hale,  P.  C.  452.  But 
yet,  qucere,  adds  Lord  Hale,  whether  if  B.  had  really  and  bond  jide 
declined  to  fight,  ran  away  as  far  as  he  could  (suppose  it  half  a  mile), 
and  offered  to  yield,  yet  A.  refusing  to  decline  it,  had  attempted  his 
death,  and  B.  afler  all  this  kills  A.  in  self-defence,  whether  it  excuses 
him  from  murder  ?  But  if  the  running  away  were  only  a  pretence 
to  save  his  own  life,  but  was  really  designed  to  draw  out  A.  to  kill 
him,  it  is  murder.  Id.  Blackstone  has  noticed  this  doubt,  but  has 
given  no  opinion  upon  the  subject;  4  Com.  185;  but  Mr.  East  has 
argued  at  some  length  in  support  of  the  proposition,  that  such  homi- 
cide will  not  amount  to  murder,  on  the  ground  that  B.,  by  retreating, 
expressly  renounces  the  illegal  combat,  and  gives  reasonable  grounds 
for  inducing  a  belief  that  he  no  longer  seeks  to  hurt  his  opponent, 
and  that  the  right  of  self-defence  ought  not  therefore  to  be  withheld 
from  him.  1  East,  285.  But  if  B.  does  not  retreat  voluntai^ily,  but  is 
driven  to  retreat  by  A.,  in  such  case  the  killing  would  be  murder. 
Thus  it  is  said  by  Hawkins,  that  if  a  man  assault  another  with  malice 
prepense,  and  after  be  driven  by  him  to  the  "wall,  and  kill  him  there 
in  his  own  defence,  he  is  guiltv  of  murder  in  respect  of  his  first  intent. 
Hawk.  P.  C.  b.  1,  c.  31,  s.  26. 

In  cases  of  deliberate  duelling,  in  which  death  ensues,  not  only  is 
the  principal  who  inflicts  the  wound  guilty  of  murder,  but  also  the 
second,  and  it  has  been  doubted  whether  the  second  of  the  party 
killed  is  not  also  guilty  of  the  same  offence.  For  the  latter  position 
Lord  Hale  cites  the  book  of  22  Edw.  3,  Coron.  262,  but  he  adds  that 
*he  thinks  the  law  too  much  strained  in  that  case,  and  that,  rH<7QQ 
though  a  great  misdemeanor,  it  is  not  murder.  1  Hale,  P.  C.  '- 
442.     But  see  R.  v.  Cuddy,  1  C,  &  K.  210,  47  E.  C.  L.,  where  it  was 


990  MURDER. 

held  by  "Williams,  J.  (Rolfc,  B,,  being  present),  that  where  two  per- 
sons go  out  to  fight  a  deliberate  duel,  and  death  ensues,  all  persons 
who  are  present  encouraging  and  promoting  that  death,  will  be  guilty 
of  murder.  And  the  person  who  acted  as  the  second  of  the  deceased 
person  in  such  duel  may  be  convicted  of  murder,  on  an  indictment 
charging  him  with  being  present,  aiding  and  abetting  the  person,  by 
whose  act  the  death  of  his  principal  was  occasioned. 

The  prisoners  were  indictetl  for  the  murder  of  Charles  Flower 
Mirfin,  who  was  killed  in  a  duel  by  a  Mr.  Elliott.  Neither  of  the 
prisoners  acted  as  a  second  on  the  occasion,  but  there  was  evidence 
to  show  that  they  and  two  other  persons  went  to  the  ground  in  com- 
pany with  Mr.  Elliott,  and  that  they  were  present  when  the  fatal 
shot  was  fired.  Vaughan,  B.,  told  the  jury,  "  When  upon  a  previous 
arrangement,  and  after  there  had  been  time  for  the  blood  to  cool, 
two  persons  meet  with  deadly  weapons,  and  one  of  them  is  killed,  the 
party  who  occasions  the  death  is  guilty  of  murder ;  and  the  seconds 
also  are  equally  guilty.  The  question  then  is,  did  the  prisoners  give 
their  aid  and  assistance  by  their  countenance  and  encouragement  of 
the  principals  in  this  contest?"  After  observing  that  neither  pris- 
oner had  acted  as  a  second,  the  learned  judge  continued :  "If, 
however,  either  of  them  sustained  the  principal  by  his  advice  or 
presence  ;  or  if  you  think  he  went  down  for  the  purpose  of  en- 
couraging and  forwarding  the  unlawful  conflict,  althougii  he  did 
not  say  or  do  anything,  yet  if  he  was  present  and  was  assisting  and 
encouraging  at  the  moment  when  the  pistol  was  fired,  he  will  be 
guilty  of  the  oiFence  imputed  by  this  indictment."  The  prisoners 
were  found  guilty.     R.  v.  Young,  8  C.  &  P.  644,  34  E.  C.  L. 

Peace  officers  and  private  persons  killed  or  killing  others  in  ap- 
prehending them.  If,  as  is  frequently  the  case,  the  apprehension  and 
detainer  of  one  person  by  another  be  lawful,  then  two  consequences 
follow  which  are  important  with  reference  to  the  crime  of  murder. 
First,  if  the  party  apprehended  resist  with  violence,  and  in  so  doing 
kill  the  party  apprehending  him,  it  is  murder  or  manslaughter ; 
secondly,  if  the  party  apprehending  in  repressing  the  violence  of  the 
party  apprehended  necessarily  kill  him,  it  is  excusable. 

The  right  of  private  persons  and  of  constables  to  apprehend  without 
warrant  has  already  been  considered.     Supra,  p.  262,  seq. 

If  the  apprehension  be  under  a  warrant,  and  the  warrant  be  legal 
and  be  rightly  executed,  every  person  will  be  bound  to  obey  it, 
whether  or  no  he  be  guilty  of  the  charge  which  gave  rise  to  the  issue 
of  the  warrant  or  not. 

Police  officer  killed  or  killing  others  in  apprehending  them — 
when  the  peace  officer  is  protected.  A  peace  officer  is  to  be  consid- 
ered as  acting  strictly  in  discharge  of  his  duty,  not  only  while  executing 
the  process  entrusted  to  him,  but  likewise  while  he  is  coming  to  perform, 
and  returning  from  the  performance  of  his  duty.  He  is  under  the 
protection  of  the  law,  eundoy  moi-ando,  et  redeundo.     And,  therefore,  if 


MURDER.  991 

coming  to  perform  his  office  he  meets  with  great  opposition  and 
retires,  and  in  the  retreat  is  killed,  this  will  amount  to  murder. 
Foster,  308  ;  1  Hale,  P.  C.  4G3.  Upon  the  same  principle,  if  he  meets 
*with  opi)Osition  by  the  way,  and  is  killed  before  he  comes  to  r^Yqn 
the  place  (such  opposition  being  intended  to  prevent  his  per-  L 
forming  his  duty,  a  fact  to  be  collected  from  the  evidence)  it  will  . 
also  amount  to  murder.     Foster,  309. 

The  authority  of  a  constable  or  other  peace  officer  ceases  with  the 
limits  of  his  district,  and  if  he  attempts  to  execute  process  out  of  the 
jurisdiction  of  the  court  or  magistrate  by  whose  orders  he  acts,  and 
is  killed,  it  is  only  manslaughter,  as  in  the  case  of  void  process. 
1  Hale,  r.  C.  458  ;  1  East,  P.  C.  314.  So  where  a  plaintiff  attempted 
to  execute  a  writ  without  a  non  omittas  clause,  within  an  exclusive 
liberty.  Holroyd,  J.,  held  him  a  trespasser,  and  the  defendant  who 
had  wounded  him  in  resisting,  and  who  Avas  indicted  for  maliciously 
cutting,  with  intent,  etc.,  was  acquitted.  R.  v.  Mead,  2  Stark,  N.  P. 
C.  205. 

But  if  the  warrant  be  directed  to  a  particular  constable  by  name, 
and  it  is  executed  by  him  within  the  jurisdiction  of  the  court  or 
magistrate  issuing  the  same,  although  it  be  out  of  the  constable's 
village,  that  is  sufficient.  1  East,  P.  C.  314 ;  Hawk.  P.  C.  b.  2,  c. 
13,  s.  27. 

A  warrant  directed  "To  the  constable  of  G.,"  under  11  &  12  Vict. 
c.  43,  s.  23,  must  be  read  as  directed  to  the  parish  constable  of  G.,  and 
its  execution  by  a  county  policeman  was  held  to  be  illegal.  R.  v. 
Saunders,  36  L.  J.,  M.  C.  87;  10  Cox,  C.  C.  R.  445,  post,  p. 
792. 

By  the  11  &  12  Vict.  c.  43,  repealing  the  5  Geo.  4,  c.  18,  and  by 
the  11  &  12  Vict.  c.  42,  s.  10,  provision  is  made  for  warrants  to  be 
directed  generally  to  all  constables  and  peace  officers  of  the  county  or 
district  in  which  the  justices  have  jurisdiction,  and  the  warrant  may 
be  executed  there  or  within  seven  miles  of  the  border  without  beinsr 
backed. 

When  a  constable  having  a  warrant  to  arrest  the  prisoner  gave  it 

-to  his  son,  and   the   latter    attempted    to    apprehend   the   prisoner, 

the   constable   then    being   in   sight,  but  a  quarter   of  a    mile   off, 

Parke,  B.,  held  that  the  arrest  was  illegal.     R.  v.  Patience,  7  C.  &  P. 

775,  32  E.  C.  L. 

In  general,  where  it  becomes  necessary  to  prove  that  the  deceased, 
or  the  prosecutor,  or  other  person  y;as  a  constable,  it  will  be  sufficient 
to  prove  that  he  acted  in  that  character,  which  will  be  prima  facie 
evidence  of  his  regular  appointment,  without  its  production.  Vide 
an^e,' pp.  6,  18.' 

For  felony  a  man  may  be  arrested  without  warrant,  but  in  misde- 
meanors it  is  essential  that  the  warrant  should  be  in  the  possession  of 
the  person  seeking  to  arrest,  for  the  man  arrested  has  a  right  to  see 
the  warrant,  and  may  resist  unless  it  is  produced,  though  it  is  imma- 

*  See  State  v.  Green,  66  Mo.  631. 


992  MURDER. 

terlal  whether  he  asks  for  it  or  not.     Codd  v.  Cabe,  1  Ex.  D.  352 ;  45 
L.  J.,  M.  C.  101  ;  R.  V.  Carey,  14  Cox,  C.  C.  214. 

Whore  it  becomes  necessary  to  show  the  warrant  or  writ  upon 
which  a  constable  or  other  officer  has  acted,  it  is  sufficient  to  produce 
the  warrant  or  writ  itself,  without  proving  the  judgment  or  decree 
upon  which  it  is  founded.  Foster,  311,  312  ;  1  East,  P.  C.  310.  But 
it  is  not  sufficient  to  prove  the  sheriff's  warrant  to  the  officer  without 
producing  the  writ  of  capias,  etc.,  upon  which  it  issued,  R.  v.  Mead, 
2  Stark.  N.  P.  C.  205 ;  2  Stark.  Ev.  518,  2nd  ed.  Where  it  is  requi- 
site to  prove  that  the  party  was  acting  under  an  authority  derived 
from  the  articles  of  war,  a  copy  of  the  articles,  printed  by  the  king's 
printer,  must  be  produced.  In  several  instances,  prisoners  have  been 
^-^-j  -|  *acquitted  on  a  charge  of  murder  for  want  of  such  evidence.  2 
'^^-1   Stark.  Ev.  519,  2nd  ed. 

Peace  officers  killed  or  killing  others  in  apprehending  them — 
regularity  of  process.  Where  a  peace  officer,  or  other  person,  having 
the  execution  of  process,  cannot  justify  without  a  reliance  on  such  pro- 
cess, it  must  appear  that  it  is  legal.^  But  by  this  it  is  only  to  be  un- 
derstood that  the  process,  whether  by  writ  or  warrant,  be  not  defective 
in  the  frame  of  it,  and  issue,  in  the  ordinary  course  of  justice,  from  a 
court  or  magistrate  having  jurisdiction  in  the  case.  Though  there  may 
have  been  error  or  irregularity  in  the  proceedings  previous  to  the 
issuing  of  the  process,  yet  if  the  sheriff  or  other  minister  of  justice  be 
killed  in  the  execution  of  it,  it  will  be  murder,  for  the  officer  to 
whom  it  is  directed  must,  at  his  peril,  pay  obedience  to  it ;  and  there- 
fore, if  a  ca.  sa.  or  other  writ  of  the  kind  issue,  directed  to  the  sheriff, 
and  he  or  any  of  his  officers  be  killed  in  the  execution  of  it,  it  is  suffi- 
cient, upon  an  indictment  for  the  murder,  to  produce  the  writ  or 
warrant,  without  showing  the  judgment  or  decree.  R.  v,  Rogers, 
Foster,  312.  So  in  case  of  a  warrant  obtained  from  a  magistrate  by 
gross  imposition,  and  false  information  touching  the  matters  suggested 
in  it.  R.  V.  Curtis,  Foster,  135,  311.  So  though  the  warrant  itself 
be  not  in  strictness  lawful,  as  if  it  express  not  the  cause  particularly 
enough,  yet  if  the  matter  be  within  the  jurisdiction  of  the  party 
granting  the  warrant,  the  killing  of  the  officer  in  the  execution  of  his 
duty  is  murder ;  for  he  cannot  dispute  the  validity  of  the  warrant,  if 

*  Commonwealth  v.  Drew  el  al.,  4  Mass.  391.  Although  a  warrant  for  an  arrest  be 
not  strictly  legal,  yet  if  the  matter  be  within  the  jurisdiction  of  the  magistrate  who 
issued  it,  the  killing  of  an  officer  in  its  execution  is  murder.  Boyd  ?'.  State,  17  Ga.  194. 
[Where  the  statute  authorizes  an  arrest  without  warrant  on  violation  of  the  law,  the 
officer  is  justified  in  doing  so  on  information  of  the  fact  tliat  defendant  is  violating  the 
law,  and  resistance  to  death  is  murder.  Ballard  r.  State,  43  O.  St.  340.]  An  officer 
having  a  warrant  to  arrest  a  person  for  a  misdemeanor,  is  justified  in  killing  him, 
when  he  p\its  himself  in  armed  resistance  to  the  officer,  and  the  I.  tier  uses  no  more 
violence  in  his  attempt  to  make  the  arrest  tlian  is  necessary.  State  v.  Garrett,  1 
Winst.  144.  Where  a  party  of  persons  were  on  an  island  belonging  to  the  United 
States,  engaged  in  gathering  wild  bird's  eggs,  and  another  party  attempted  to  land  for 
the  same  purpose,  if  tlie  first  resist  the  landing  by  force,  the  second  party  are  justified 
in  using  force ;  and  if  one  of  the  party  on  shore  is  killed  in  the  encounter,  it  will  be 
justifiable  homicide.    People  v.  Batchelder,  27  Cal.  69.    S. 


MURDER.  993 

it  be  under  the  seal  of  the  justice,  etc.  1  Hale,  P.  C.  460.  In  all 
kinds  of  process,  both  civil  and  criminal,  the  falsity  of  the  charge 
contained  in  such  process, — that  is,  the  injustice  of  the  demand  in 
one  case,  or  the  party's  innocence  in  the  other,  will  aftbrd  no  matter 
of  alleviation  for  killing  the  officer  ;  for  every  man  is  bound  to  sub- 
mit himself  to  the  regular  course  of  justice.  1  East,  P.  C.  310  ;  1 
Hale,  P.  C.  457. 

The  provisions  with  regard  to  the  issuing,  backing,  and  service  of 
warrants,  and  the  duties  generally  of  justices  out  of  sessions,  with  re- 
spect to  persons  charged  with  indictable  offences  are  embodied  in  the 
statutes  11  &  12  Vict.  c.  42  ;  12  &  13  Vict.  c.  69 ;  14  &  15  Vict.  c. 
93 ;  27  &  28  Vict.  c.  53 ;  44  &  45  Vict.  c.  24. 

If  the  process  be  defective  in  the  frame  of  it,  as  if  there  be  a  mis- 
take in  the  name  or  addition  of  the  party,  or  if  the  name  of  the  party 
or  of  the  officer  be  inserted  without  authority,  and  after  the  issuing 
of  the  process,  and  the  officer  in  attempting  to  execute  it  be  killed,  this 
is  only  manslaughter  in  the  party  whose  liberty  is  invaded.  Foster, 
312 ;  1  East,  P.  C.  310.^  The  prisoner,  who  had  been  arrested  and 
rescued,  declared  that  if  Welsh,  the  officer,  attempted  to  arrest  him 
again,  he  Avould  shoot  him.  A  writ  of  rescue  was  made  out  and 
carried  to  the  office  of  Mr.  Deacle,  who  acted  for  the  under-sheriff 
of  the  county,  to  have  the  warrants  made  out.  The  under-sheriff's 
custom  was  to  deliver  to  Deacle  sometimes  blank  warrants,  some- 
times blank  pieces  of  paper,  under  the  seal  of  the  office,  to  be  after- 
Avards  filled  up  as  occasion  should  require.  Deacle  made  out  a 
warrant  against  the  prisoner  on  one  of  these  blank  pieces  of  paper 
and  delivered  it  to  Welsh,  who  inserted  therein  the  names  of  two 
other  persons  on  the  12th  of  July.  In  executing  this  warrant  one 
of  these  persons  in  getting  into  the  house  to  assist  in  the  arrest,  was 
shot  by  the  prisoner.  Upon  a  reference  to  the  judges,  they  certified 
that  the  offence  in  point  of  law  amounted  only  to  manslaughter. 
*R.  V.  Stockley,  1  East,  P.  C.  31 0.  So  where  the  name  of  another  r^Yq^ 
sheriff's  officer  was  inserted  in  a  sheriff's  warrant,  after  it  had  ■- 
been  signed  and  sealed,  the  arrest  by  the  substituted  officer  was  held 
illegal.  R.  v.  Stevenson,  19  St.  Tr.  846.  But  where  the  name  of 
an  officer  is  inserted  before  the  warrant  is  sent  out  of  the  sheriff's 
office,  it  seems  the  arrest  will  not  be  illegal  on  the  ground  that 
the  warrant  was  sealed  before  the  name  of  the  officer  was  inserted. 
1  Russ.  Cri.  740,  5th  ed.  Thus,  where  the  names  of  two  officers  were 
interlined  in  a  writ  of  possession,  after  it  was  sealed,  but  before  it 
left  the  sheriff's  office,  and  in  executing  it  one  of  the  officers  was 
wounded,  the  party  wounding  having  been  indicted  under  43  Geo.  3, 
c.  58  (repealed),  and  convicted,  the  judges  held  the  conviction  right. 
R.  V.  Harris,  1  Russ.  Cri.  741,  5th  ed.  Where  a  magistrate  kept  a 
number  of  blank  warrants  ready  signed,  and,  on  being  applied  to, 
filled  up  one  of  them,  and  delivered  it  to  an  officer,  who  in  attempt- 

^  Eafferty  v.  People,  69  111.  Ill ;  Simmerman  v.  State,  14  Neb.  568.  An  unlawful 
arrest  is  no  justification  for  homicide.  Creighton  v.  Commonwealth,  8  Crim.  Law 
Mag.  98. 

63 


994  MURDER. 

ing  to  make  the  arrest  was  killed,  it  was  held  that  this  was  murder 
in  the  party  killing.  Per  Lord  Kenyon,  R,  v.  Inhab.  of  Winwick,  8 
T.  R.  454.  But  where  a  blank  warrant  signed  by  the  magistrate  was 
filled  up  by  a  police  serjeant  in  the  absence  of  the  magistrate,  and 
delivered  by  him  to  an  officer,  who  in  attempting  to  arrest  the  pris- 
oner was  killed  by  him,  it  was  held,  in  the  absence  of  malice,  that 
the  offence  was  manslaughter  only,  and  not  murder.  Rafferty  v.  The 
People,  12  Cox,  C.  C.  617.  (United  States  case.)  "Where  a  county 
constable  attempted  to  arrest  the  defendant  under  warrant,  directed  to 
the  constable  of  Gainsborough,  it  was  held  that  the  attempted  appre- 
hension was  illegal,  and  therefore  that  a  conviction  for  wounding 
the  constable  in  the  execution  of  his  duty  with  intent  to  resist  lawful 
apprehension  could  not  be  sustained.  R.  v,  Saunders,  3G  L.  J.,  M. 
C.  87 ;  10  Cox,  C.  C.  R.  445.  A  warrant  to  commit  for  an  assault, 
issued  by  county  justices  of  Worcester,  and  served  on  the  prisoner  in 
the  borough  of  Worcester,  without  being  backed  by  a  justice  for  the 
borough,  Avas  held  to  be  defective.  R.  v.  Cumpton,  5  Q.  B.  D.  341  ; 
49  L.  J.,  M.  C.  41. 

A  justice's  warrant,  commanding  a  constable  to  apprehend  and 
bring  before  him  the  body  of  A.  to  answer  all  such  matters  and  things 
as  on  her  Majesty's  behalf  shall  be  objected  against  him,  on  oath  by 
B.,  for  an  assault  committed  upon  B.,  on,  etc.,  is  bad ;  as  not  showing 
any  information  on  oath  upon  which  the  warrant  issues.  Caudle  v. 
Seymour,  1  Q.  B.  889. 

Under  this  head  it  may  properly  be  considered  how  far  any  defect 
in  the  frame  of  the  process,  or  any  other  illegality  in  the  arrest,  will 
be  a  defence  to  a  third  person  interfering  to  prevent  it,  and  killing 
the  officer  in  so  doing.'  The  question  is  put  by  Mr.  East  in  this 
form.  How  far  the  mere  view  of  a  person  under  arrest,  or  about  to 
be  arrested,  supposing  it  to  be  illegal,  is  of  itself  such  a  provocation 
to  a  bystander  as  will  extenuate  his  guilt  in  killing  the  officer,  in 
order  to  set  the  party  free,  or  prevent  the  arrest  ?  In  the  following 
case  it  Avas  held  by  seven  of  tlie  judges  against  five,  that  it  was  such 
a  provocation.  One  Bray,  constable  of  St.  Margaret's,  Westminster, 
came  into  St.  Paul's,  Covent  Garden,  and  without  warrant  took  up 
one  Anne  Dekins,  as  a  disorderly  person,  though  she  was  innocent. 
The  prisoners,  strangers  to  Dekins,  meeting  her  in  Bray's  custody, 
drew  their  swords,  and  assaulted  Bray  to  rescue  her ;  but  on  his 
showing  his  staff,  and  declaring  he  was  about  the  Queen's  business, 
they  put  up  their  swords,  and  he  carried  her  to  the  round-house  in 
*7Q'^1  *C'ovent  Garden.  Soon  afterwards  the  prisoners  drew  their 
-J  swords,  and  assaulted  Bray,  in  order  to  get  the  woman  dis- 
charged. Whereupon  Bray  called  Dent  to  his  assistance,  to  keep  the 
woman  in  custody,  and  to  defend  himself  from  the  violence  of  the 
prisoners,  when  one  of  the  prisoners,  before  any  stroke  received,  gave 
Dent  a  mortal  wound.     All  the  judges,  except  one,  agreed  that  Bray 

^  Commonwealth  v.  Drew  et  al.,  4  Mass.  391.     S. 

A  mere  announcement  of  an  intention  to  arrest  will  not  justify  the  killing  an  unau- 
thorized person.    State  v.  Underwood,  75  Mo.  230. 


MURDER.  995 

acted  without  any  authority  ;  but  that  one  thought  showing  his  staif 
was  sufficient,  and  that,  with  respect  to  the  })risoners,  he  was  to  be  con- 
sidered as  a  constable  de  facto.  But  the  main  point  upon  which  they 
differed  was,  whether  the  illegal  imprisonment  of  a  stranger  was,  under 
these  circumstances,  a  sufficient  provocation  to  bystanders  ;  or,  in  the 
language  of  Lord  Holt,  a  provocation  to  all  the  subjects  of  England. 
Five  judges  held  the  case  to  be  murder,  and  thought  that  it  would 
have  been  a  sufficient  provocation  to  a  relation  or  a  friend,  but  not  to 
a  stranger.  The  other  seven  judges,  who  held  it  to  be  manslaughter, 
thought  that  there  was  no  ground  for  making  such  a  distinction,  and 
that  it  was  a  provocation  to  all,  whether  strangers  or  others,  so  as  to 
reduce  the  offence  to  manslaughter,  it  being  a  sudden  action,  without 
any  precedent  malice  or  apparent  design  of  doing  hurt,  but  only  to 
prevent  the  imprisonment  of  the  woman,  and  to  rescue  one  who  was 
unlawfully  restrained  of  her  liberty.  R.  v.  Tooley,  2  Lord  llaym. 
1296  ;  1  East,  P.  C.  325.  The  resolution  of  the  seven  judges  in  this 
case  has  been  commented  upon  with  much  force  by  Mr.  Justice  Foster. 
The  prisoners,  he  observes,  upon  their  first  meeting,  drew  their  swords 
upon  the  constables,  who  were  unarmed,  but  put  them  up,  appearing, 
on  cool  reflection,  to  be  pacified.  At  the  second  meeting  the  constable 
received  his  death- wound,  before  any  blow  given  or  offered  by  him  or 
his  party.  There  was  no  pretence  of  a  rescue  ;  for,  before  the  second 
encounter,  the  woman  had  been  lodged  in  the  round-house,  which  the 
soldiers  could  not  hope  to  force  ;  so  that  the  second  assault  upon  the 
constable  seemed  rather  to  be  grounded  upon  resentment,  or  a  principle 
of  revenge  for  what  had  passed  than  upon  any  hope  to  rescue  the 
woman.  He  concludes  with  expressing  an  opinion  that  the  doctrine 
advanced  in  this  case  is  utterly  inconsistent  with  the  known  rules  of 
law  touching  a  sudden  provocation  in  a  case  of  homicide,  and,  which 
is  of  more  importance,  inconsistent  with  the  principles  upon  which  all 
civil  government  is  founded,  and  must  subsist.  Foster,  314,  315  ;  1 
East,  P.  C.  326.  In  a  recent  case  also,  upon  R.  v.  Tooley  being  cited, 
Alderson,  J.,  observed  that  it  had  been  overruled.  R.  v.  Warner,  1 
Moo.  C.  C.  388. 

The  majority  of  the  judges,  in  the  preceding  case,  appear  to  have 
grounded  their  opinion  upon  two  former  decisions.  The  first  of  these 
is  thus  stated  by  Kelynge.  Berry  and  two  others  pressed  a  man 
without  authority  :  the  man  quietly  submitted,  and  went  along  with 
them.  The  prisoner,  with  three  others,  seeing  them,  instantly  pursued 
them,  and  required  to  see  their  warrant ;  on  which  Berry  showed 
them  a  paper,  which  the  prisoner  and  his  companions  said  was  no 
warrant,  and  immediately  drawing  their  swords  to  rescue  the  im- 
pressed man,  thrust  at  Berry.  On  this,  Berry  and  his  tAvo  compan- 
ions drew  their  swords,  and  a  fight  ensued,  in  which  Hugget  killed 
Berry.  R.  v.  Hugget,  Kel.  52.  Lord  Hale's  report  of  this  case  is 
more  brief.  A  press-master  seized  B.  for  a  soldier,  and  with  the 
assistance  of  C.  laid  hold  of  him ;  D.  finding  fault  with  the  rude- 
ness of  C,  there  grew  a  quarrel  between  them,  and  D,  killed  C.  By 
the  advice  of  all  the  judges,  except  very  few,  it  was  ruled  that  this 


996  MURDER. 

*7Q-n  *^^^^  ^"^  manslaughter.  1  Hale,  P.  C.  405.  The  judges 
-I  were,  however,  divided  in  opinion,  four  holding  that  it  was 
murder,  eight  that  it  was  manslaughter.  Foster,  314.  Mr.  Justiee 
Foster  is  inelined  to  rest  the  authority  of  this  case  upon  the  ground 
of  its  having  been  a  sudden  quarrel  and  affray,  causing  a  combat  be- 
tween the  prisoner  and  the  assistant  of  the  press-master  ;  and  he  ob- 
serves that  Hale,  who,  at  the  conference,  concurred  in  opinion  with 
those  who  held  it  to  be  manslaughter  only,  says  nothing  touching  the 
provocation  which  an  act  of  oppression  towards  individuals  might  be 
supposed  to  give  to  the  bystanders.  He  admits,  however,  that  the 
case,  as  reported  in  Kelynge,  does  indeed  turn  upon  the  illegality  of 
the  trespass,  and  the  provocation  such  an  act  of  oppression  may  be 
presumed  to  give  to  every  man,  be  he  stranger  or  friend,  out  of  mere 
compassion,  to  attempt  a  rescue.  Foster,  314.  The  other  case,  re- 
ferred to  in  R.  V.  Tooley,  was  that  of  Sir  Henry  Ferrers.  Sir  Henry 
Ferrers  being  arrested  for  debt  upon  an  illegal  warrant,  his  servant, 
in  attempting  to  rescue  him,  as  was  pretended,  killed  the  officer.  But, 
upon  the  evidence  it  appeared  that  Sir  H.  Ferrers,  upon  the  arrest, 
obeyed,  and  was  put  into  a  house  before  the  fighting  between  the 
officer  and  his  servant,  and  the  servant  was  acquitted  of  the  mur- 
der and  manslaughter.  R.  v.  Ferrers,  Cro.  Car.  371.  Upon  this  case 
Mr.  Justice  Foster  observes,  that  from  the  report  it  does  not  ap- 
pear upon  what  provocation  the  quarrel  and  affray  began,  and  that 
it  is  highly  probable  that  no  rescue  was  thought  of,  or  attempted. 
Foster,  313. 

This  doctrine  undenvent  some  discussion  in  a  later  case.  The 
prisoner  was  tried  at  the  Old  Bailey  for  the  murder  of  an  assistant  to 
a  constable,  who  had  come  to  arrest  a  man  named  Farmello  (with 
whom  the  prisoner  cohabited)  as  a  disorderly  person,  under  19  Geo. 
2,  c.  10.  Farmello,  though  not  an  object  of  the  Act,  made  no  resist- 
ance, but  the  prisoner  immediately,  on  the  constable  and  his  assistant 
requiring  Farmello  to  go  along  with  them,  without  any  request  to  de- 
sist, and  without  speaking,  stabbed  the  assistant.  Hotham,  B.,  said 
it  was  a  very  different  case  from  what  it  would  have  been  if  the  blow 
had  been  given  by  Farmello  himself.  If  he,  when  the  constable  en- 
tered the  room  with  an  insufficient  warrant,  had  immediately,  in  his 
own  defence,  rather  than  suffer  himself  to  be  arrested,  done  the  deed, 
the  homicide  would  have  been  lessened  to  the  crime  of  manslaughter. 
The  offence  also  might  have  been  of  a  different  complexion  in  the  eye 
of  the  law,  if  the  prisoner  had  been  the  lawful  Avife  of  Farmello  ;  but 
standing  in  the  light  she  did,  she  was  to  be  considered  an  absolute 
stranger  to  him,  a  mere  stander-by,  a  person  who  had  no  right  whatever  to 
be  in  any  degree  concerned  for  him.  Thus,  being  a  stranger,  and  having, 
before  any  person  had  been  touched,  and  when  the  officers  had  only  re- 
quired Farmello  to  go  with  them,  and  without  saying  a  word  to  pre- 
vent the  intended  arrest,  stabbed  the  assistant,  she  was  guilty  of  murder. 
He  then  adverted  to  R.  v.  Hugget  and  R.  v.  Tooley  {supra),  and  ob- 
served, that  the  circumstances  there  were  extremely  different  from  those 
of  the  present  case.    Mr.  Justice  Gould  and  Mr.  Justice  Ashurst  con- 


MURDER.  997 

curred  in  this  opinion ;  but  it  was  thought  fit  that  the  jury  should  find  a 
special  verdict,  as  the  case  was  one  of  great  importance,  A  special  ver- 
dict was  accordingly  found,  and  the  case  was  subsequently  argued  before 
ten  of  the  judges,  but  no  judgment  was  given,  the  prisoner  either 
being  discharged,  or  having  made  her  escape  from  prison,  during  the 
*riots  in  1780.  It  is  said,  that  the  judges  held  the  case  to  be  r^^-qr 
manslaughter  only.  R.  v.  Adey,  1  Leach,  206;  1  East,  P.  C.  L 
329  (h);  1  Ru,"^s.  756,  5tli  ed.  (74),  note  by  Greaves  citing  R.  v.  Porter, 
9  C.  &  P.  778,  38  E.  C.  L. 

The  above  questions  have  been  discussed  in  certain  correspondence 
which  passed  between  two  very  learned  judges  and  learned  counsel 
subsequently  to  the  trial  of  Allen  and  others,  at  the  Manchester  Spe- 
cial Commission,  for  the  murder  of  Brett,  a  police  officer,  whom  they 
shot  in  attempting  to  rescue  a  Fenian  prisoner.  The  law  upon  the 
subject  is  thus  laid  down  in  a  letter  from  Mr.  Justice,  now  Lord 
Blackburn  : — "  When  a  constable,  or  other  person  properly  authorized, 
acts  in  the  execution  of  his  duty,  the  law  casts  a  peculiar  protection 
around  him,  and  consequently,  if  he  is  killed  in  the  execution  of  his 
duty,  it  is  in  general  murder,  even  though  there  be  such  circumstances 
of  hot  blood  and  want  of  premeditation  as  would  in  an  ordinary  case 
reduce  the  crime  to  manslaughter.  But  where  the  warrant  under 
which  the  officer  is  acting  is  not  sufficient  to  justify  him  in  arresting 
or  detaining  prisoners,  or  there  is  no  warrant  at  all,  he  is  not  entitled 
to  this  peculiar  protection,  and  consequently  the  crime  may  be  reduced 
to  manslaughter  when  the  offence  is  committed  on  the  sudden,  and  is 
attended  by  circumstances  affording  reasonable  provocation." 

Although  it  is  intimated  by  Lord  Hale,  as  well  as  by  Hotham,  B., 
in  the  preceding  case,  that  a  distinction  may  exist  between  the  case  of 
servants  and  friends,  and  that  of  a  mere  stranger,  yet  it  must  be  con- 
fessed, says  Mr.  East,  that  the  limits  between  both  are  nowhere  accu- 
rately defined.  And,  after  all,  the  nearer  or  more  remote  connection 
of  tlie  parties  with  each  other,  seems  more  a  matter  of  observation  to 
the  jury,  as  to  the  probable  force  of  the  provocation,  and  the  motive 
which  induced  the  interference  of  a  third  person,  than  as  furnishing 
any  precise  rule  of  law,  grounded  on  such  a  distinction.  1  East, 
P.  C.  292  ;  1  Russ.  Cri.  706,  5th  ed. 

Peace  officers  killed  or  killing  others  in  apprehending  them — 
notice  of  their  authority.^  With  regard  to  persons  who,  in  the  right 
of  their  offices,  are  conservators  of  the  peace,  and  in  that  right  alone 
interfere  in  the  case  of  riots  and  affrays,  it  is  necessary,  in  order  to 
make  the  offence  of  killing  them  amount  to  murder,  that  the  parties 
killing  them  should  have  some  notice  with  what  intent  they  interpose, 
otherwise  the  persons  engaged  may,  in  the  heat  and  bustle  of  the 
affray,  imagine  that  they  came  to  take  a  part  in  it.  But,  in  these  cases, 
a  small  matter  will  amount  to  a  due  notification.  It  is  sufficient  if 
the  peace  be  commanded,  or  the  officer  in  any  other  manner  declare 

^  A  mere  announcement  of  an  intention  to  arrest  made  by  an  authorized  person,  will 
not  justify  the  defendant  in  killing  him.    State  v.  Underwood,  75  Mo.  230. 


998  MURDER. 

with  what  intent  he  interposes.  And  if  the  officer  be  within  his 
proper  district,  and  known  or  generally  acknowledged  to  bear  the 
office  which  he  assumes,  the  law  will  presume  that  the  party  killing 
had  due  notice  of  his  intent,  especially  if  it  be  in  the  daytime.  In 
the  night  some  further  notification  is  necessary ;  and  commanding  the 
peace,  or  using  words  of  the  like  imj)ort  notifying  his  business,  will 
be  sufficient.     Foster,  310. 

A  bailiff  or  constable,  sworn  in  at  the  leet,  is  presumed  to  be  known 
to  all  the  inhabitants  or  residents  who  are  bound  to  attend  at  the  leet, 
and  are  consequently  bound  to  take  notice  that  he  is  a  constable ;  1 
Hale,  P.  C.  461 ;  and  in  such  case  the  officer,  in  making  the  arrest,  is 
*7Qfi1  "^^  bound  to  show  the  warrant.  Id.  459.  But  if  the  *consta- 
-l  ble  be  appointed  in  some  other  way,  from  which  the  notoriety  of 
his  character  could  not  be  presumed,  some  other  circumstances  would 
be  required  to  found  the  presumption  of  knowledge.  And  in  the 
night-time,  some  notification  would  be  necessary,  in  the  case  of  a  leet 
constable.  But  whether  in  the  day  or  night-time,  it  is  sufficient  if 
he  declares  himself  to  be  the  constable,  or  commands  the  peace  in  the 
king's  name.  1  Hale,  P.  C.  461.  Where  a  man,  assisting  two  ser- 
geants-at-mace  in  the  execution  of  an  escape  warrant,  had  been  killed, 
a  point  was  reserved  for  the  opinion  of  the  judges,  whether  or  not 
sufficient  notice  of  the  character  in  which  the  constables  came  had 
been  given.  It  appeared  that  the  officers  went  to  the  shop  where  the 
party  against  whom  they  had  the  warrant,  and  the  prisoner,  who  was 
with  him,  were;  and  calling  out  to  the  former,  informed  him  that 
they  had  an  escape  warrant  against  him,  and  required  him  to  surren- 
der, otherwise  they  should  break  open  the  door.  In  proceeding  to  do 
so,  the  prisoner  killed  one  of  the  sergeant's  assistants.  Nine  of  the 
judges  were  of  opinion  that  no  precise  form  of  words  Avas  required ; 
that  it  was  sufficient  that  the  party  had  notice,  that  the  officer  came 
not  as  a  mere  trespasser,  but  claiming  to  act  under  a  proper  authority. 
The  judges  who  differed  thought  that  the  officers  ought  to  have  de- 
clared in  an  explicit  manner  what  sort  of  a  warrant  they  had.  They 
said  that  an  escape  does  not  ex  vi  termini,  or,  in  notion  of  law,  imply 
any  degree  of  force  or  breach  of  the  peace,  and  consequently  the  pris- 
oner had  not  due  notice  that  they  came  under  the  authority  of  a  war- 
rant grounded  on  a  breach  of  the  peace;  and  they  concluded  that,  for 
want  of  this  due  notice,  the  officers  were  not  to  be  considered  as  act- 
ing in  the  discharge  of  their  duty.     R.  v.  Curtis,  Foster,  135. 

With  regard  to  a  private  bailiff  or  special  bailiff,  it  must  either 
appear  that  the  party  resisting  was  aware  of  his  character,  or  there 
must  be  some  notification  of  it  by  the  bailiff,  as  by  saying  I  arrest 
you,  which  is  of  itself  sufficient  notice;  and  it  is  at  the  peril  of  the 
party  if  he  kills  him  after  these  words,  or  words  to  the  same  effect,  and 
it  will  be  murder.  1  Hale,  P.  C.  461  ;  R.  v.  Mackalley,  9  Co.  69, 
b ;  1  Puss.  Cri.  747,  5th  ed.  It  is  said,  also,  that  a  private  bailiff 
ought  to  show  the  warmnt  upon  which  he  acts,  if  it  is  demanded.  1 
Russ.  Cri.  747.  5th  ed.;  citing  1  Hale,  P.  C.  583,  588,  589.  It  seems, 
however,  that  this  must  be  understood  of  a  demand  made,  after  sub- 


MURDER.  999 

mitting  to  the  arrest.  The  expression  in  Hale  (459)  is,  "  snch  person 
must  show  his  warrant,  or  signify  the  eontents  of  it;"  and  it  appears, 
from  the  authority  of  the  same  writer,  supra,  that  even  the  words,  "  I 
arrest  you,"  are  a  sufficient  signification  of  the  officer's  authority. 

Peace  officers  killed  or  killing  others  in  apprehending  them — 
mode  of  executing  their  duty.  In  cases  oi'  fetoyiy  actually  commit- 
ted, if  the  offender  will  not  suffer  himself  to  be  arrested,  but  stands 
upon  his  own  defence,  or  flies,  so  that  he  cannot  possibly  be  appre- 
hended alive  by  those  who  pursue  him,  whether  public  officers  or 
private  persons,  with  or  without  a  warrant,  he  may  be  lawfully  killed  by 
them.^  Hawk.  P.  C.  b.  1,  c.  28,  s.  11.  Where,  says  Mr.  Justice  "Foster, 
a  felony  is  committed,  and  the  felon  flies  from  justice,  and  a  danger- 
ous wound  is  given,  it  is  the  duty  of  every  man  to  use  his  best  endeav- 
ors for  preventing  an  escape  ;  and  if,  in  the  pursuit,  the  party  flying  is 
*killed,  where  he  cannot  be  otherioise  overtaken,  it  is  justifiable  rrtj^qy 
homicide.     Foster,  271.  L 

In  case  an  innocent  person  is  indicted  for  felony,  and  will  not  suffer 
himself  to  be  arrested  by  the  officer  who  has  a  warrant  for  that  pur- 
pose, he  may  be  lawfully  killed  by  him,  if  he  cannot  otherwise  be 
taken  ;  for  there  is  a  charge  against  him  on  record,  to  which,  at  his 
peril,  he  is  bound  to  answer.  Hawk.  P.  C.  b.  1,  c.  28,  s.  12.  It 
seems,  hoM'ever,  that  a  constable,  or  other  peace  officer,  is  bound  to 
arrest  a  person  indicted  of  felony  loithout  a  warrant,  and  that,  there- 
fore, if  it  be  not  possible  otherwise  to  apprehend  him,  he  will  be 
justified  in  killing  him,  although  he  have  no  warrant.  See  1  East, 
P.  C.  300. 

Whether  or  not  a  peace  officer  who  attempts,  without  a  warrant,  to 
apprehend  a  person  on  suspicion  of  felony,  will  be  justified  in  killing 
liim,  in  case  he  cannot  otherwise  apprehend  him,  is  a  case  requiring 
great  consideration.  Even  in  the  instance  of  breaking  open  the  out- 
ward door  of  a  house,  a  peace  officer  is  not  justified,  unless  he  is  acting 
under  a  warrant,  in  proceeding  to  that  extremity  ;  Foster,  321,  and 
vide  post,  p.  798  ;  still  less  could  he  be  justified  in  a  matter  concerning 
life.  However,  according  to  Lord  Hale,  the  officer  would  be  justified 
in  killing  the  partv  if  he  fly,  and  cannot  otherwise  be  apprehended. 
2  Hale,  P.  C.  72,  80. 

In  cases  of  misdemeanors,  the  law  does  not  admit  the  same  severe 
rule  as  in  that  of  felonies.  The  cases  of  arrests  for  misdemeanors  and 
in  civil  proceedings  are  upon  the  same  footing.  Foster,  271.  If  a 
man  charged  with  a  misdemeanor,  or  the  defendant  in  a  civil  suit,  flies, 
and  the  officer  pursues,  and  in  the  pursuit  kills  him,  it  will  be  murder. 
1  Hale,  P.  C.  481  ;  Foster,  451.  Or  rather,  according  to  Mr.  Justice 
Foster,  it  will  be  murder  or  manslaughter,  as  circumstances  may  vary 

^  A  well-grounded  belief  that  a  felony  is  about  to  be  committed,  will  extenuate  a 
homicide  committed  in  prevention  of  the  lony,  but  not  a  homicide  committed  in 
pursuit  by  an  individual  of  his  own  accord.     State  v.  Rutherford,  1  Hawks,  457.  S. 

A  citizen  lias  a  riglit  to  arrest  without  a  warrant  one  whom  he  sees  committing 
a  felonv,  and  it  is  murder  if  the  felon  resists  and  kills  him.  Kennedy  v.  State, 
107  Ind.  144. 


1000  MUEDER. 

the  casG.  For  if  tlie  officer,  in  the  heat  of  the  pursuit,  and  merely  to 
overtake  the  defendant,  should  trip  up  his  heels,  or  give  him  a  stroke 
with  an  ordinary  cudgel,  or  other  wea})on  not  likely  to  kill,  and  death 
should  ensue,  it  seems  that  this  woidd  amount  to  no  more  than  man- 
slaughter, and  in  some  cases  not  even  to  that  offence.  But  if  he  had 
made  use  of  a  deadly  weapon,  it  would  have  amounted  to  murder. 
Foster,  271 ;  and  see  Codd  v.  Cabe,  45  L.  J.,  M.  C.  101  ;  1  Ex.  D.  352, 
ante,  p.  790. 

If  jiersons  engaged  in  a  riot,  or  forcible  entry,  or  detainer,  stand  on 
their  defence,  and  continue  the  force  in  opposition  to  the  command  of 
a  justice  of  the  peace,  etc.,  or  resist  such  justice  endeavoring  to  arrest 
them,  the  killing  of  them  may  be  justified  ;  and  so  perhaps  may  the 
killing  of  any  dangerous  rioters  by  private  persons,  who  cannot  other- 
wise su})press  them  or  defend  themselves  from  them.  Hawk.  P.  C.  b. 
1,  c.  28,  s.  14. 

It  is  to  be  observed,  that  in  all  the  above  cases  where  the  officer  is 
justified  by  his  authority,  and  exercises  that  authority  in  a  legal  man- 
ner, if  he  be  resisted,  and  in  the  course  of  that  resistance  is  killed,  the 
offence  will  amount  to  murder. 

With  regard  to  the  point  of  time  at  which  a  constable  or  other 
peace  officer  is  justified,  in  case  of  resistance,  in  resorting  to  measures 
of  violence,  it  is  laid  down,  that  although,  in  the  case  of  common 
persons,  it  is  their  duty,  when  they  are  assaulted,  to  fly  as  far  as  they 
may,  in  order  to  avoid  the  violence,  yet  a  constable  or  other  peace 
officer,  if  assaulted  in  the  execution  of  his  duty,  is  not  bound  to  give 
way,  and  if  he  kills  his  assailant,  it  is  adjudged  homicide  in 
*79S1  *s6lf-defeuce.  1  Hale,  P.  C.  481.  This  rule  holds  in  the  case 
-'  of  the  execution  of  civil  process,  as  well  as  in  apprehensions 
upon  a  criminal  charge.  Hawk.  P.  C.  b.  1,  c.  28,  s.  17.  But  though 
it  be  not  necessary  that  the  officer  should  retreat  at  all,  yet  he  ought 
not  to  come  to  extremities  upon  every  slight  interruption,  nor  without 
a  reasonable  necessity.  Therefore,  when  a  collector,  having  distrained 
for  duty,  laid  hold  of  a  maid  servant  who  stood  at  the  door  to  prevent 
the  distress  being  carried  away,  and  beat  her  head  and  back  several 
times  against  the  door-post,  of  which  she  died ;  although  the  court 
held  her  opposition  to  them  to  be  a  sufficient  provocation  to  extenuate 
the  homicide,  yet  they  were  clearly  of  opinion  that  the  prisoner  was 
guilty  of  manslaughter,  in  so  far  exceeding  the  necessity  of  the  case. 
And  where  no  resistance  at  all  is  made,  and  the  officer  kills,  it  will 
be  murder.  So  if  the  officer  kills  the  party  after  the  resistance  is 
offered,  and  the  necessity  has  ceased,  it  is  manslaughter  at  least ;  and 
if  the  blood  had  time  to  cool,  it  would,  it  seems,  be  murder.  1  East, 
P.  C.  297. 

In  respect  of  the  time  of  executing  process,  it  may  be  done  at  night 
as  well  as  by  day ;  and  therefore  killing  a  bailiff,  or  other  officer, 
under  pretence  of  his  coming  at  an  unseasonable  hour,  would  be 
murder.  But  since  the  statute  29  Car.  2,  e.  7,  s.  6,  all  process  war- 
rants, etc.,  served  or  executed  on  a  Sunday  are  void,  except  in  cases  of 
treason,  felony,  or  breach  of  the  peace,  and  tlierefore  an  arrest  on  any 


MURDER.  1001 

other  account,  made  on  that  day,  is  the  same  as  if  done  without 
any  authority  at  all.  1  East,  P.  C.  324.  But  see  now  11  &  12  Vict. 
c.  42,  s.  4.  ^ 

In  executing  their  duty,  it  often  becomes  a  question  in  what  cases 
constables  and  other  peace  officers  are  justified  in  breaking  open  win- 
dows and  doors.  In  no  case  whatever  is  an  officer  justified  in  break- 
ing an  outward  door  or  windoAV,  unless  a  previous  notification  has 
been  given,  and  a  demand  of  entrance  made  and  refused.  Foster,  320 ; 
Hawk.  P.  C.  b.  2,  c.  14,  s.  1. 

^Vhere  a  felony  has  been  actually  committed,  or  a  dangerous  wound 
given,  a  peace  officer  may  justify  breaking  an  entrance  door  to  appre- 
hend the  olfender  without  any  warrant,  but  in  case  of  misdemeanors 
and  breach  of  the  peace  a  warrant  is  required  ;  it  likewise  seems  to  be 
the  better  opinion  that  mere  suspicion  of  felony  will  not  justify  him 
in  proceeding  to  this  extremity  unless  he  be  armed  with  a  warrant. 
Foster,  320,  321  ;  Hawk.  P.  C.  b.  2,  c,  14,  s.  7  ;  1  Russ.  Cri.  748, 
749,  5th  ed.;  sed  vide,  1  Hale,  P.  C.  583  ;  2  Id.  92. 

In  cases  of  writs,  an  officer  is  justified  in  breaking  an  outer  door 
upon  a  capias,  grounded  on  an  indictment  for  any  crime  whatever,  or 
upon  a  capias  to  find  sureties  for  the  peace,  or  the  warrant  of  a  justice 
for  that  purpose.  Hawk.  P.  C.  b.  2,  c.  14,  s.  3.  So  upon  a  capias 
utlagatiini,  or  capiat  pro  fine;  Id.  1  Hale,  P.  C  459  ;  or  upon  an 
habere  facias  possessionem ;  1  Hale,  P.  C.  458  ;  or  upon  the  warrant 
of  a  justice  of  the  peace  for  levying  a  forfeiture  in  execution  of  a 
judgment  or  conviction  ;  Hawk.  P.  C  b.  2,  c.  14,  s.  5. 

If  there  be  an  affray  in  a  house,  and  manslaughter  or  bloodshed  is 
likely  to  ensue,  a  constable  having  notice  of  it,  and  demanding  en- 
trance, and  being  refused,  and  the  affray  continuing,  may  break  open 
the  doors  to  keep  the  peace.  2  Hale,  P.  C.  95  ;  Hawk.  P.  C.  b. 
2,  c.  14,  s.  8.     And  if  there  be  disorderlv  drinkino;  or  noise  in  a 

7  7  ^  C^ 

house  at  an  unseasonable  hour  of  the  night,  especially  in  inns, 
taverns,  or  alehouses,  the  constable  or  his  watch  demanding  entrance, 
*and  being  refused,  may  break  open  the  doors  to  see  and  sup-  r>(c7QQ 
press  the  disorder.  2  Hale,  P.  C.  95  ;  1  East,  P.  C.  322.  So  L  ^ 
if  affrayers  fly  to  a  house,  and  he  follows  them  with  fresh  suit,  he  may 
break  open  the  doors  to  take  them.  Hawk.  P.  C.  b,  1,  c.  63,  s.  16. 
But  it  has  been  doubted  whether  a  constable  can  safely  break  open 
doors  in  suuh  a  case  without  a  magistrate's  warrant,  and  it  is  said,  that 
at  least  there  must  be  some  circumstances  of  extraordinary  violence  to 
justify  him  in  so  doing.     1  Russ.  Cri.  390  {t),  5th  ed. 

In  civil  suits,  an  officer  cannot  justify  the  breaking  open  an  out- 
ward door  or  window  to  execute  the  process  ;  if  he  do  break  it  open, 
he  is  a  trespasser.  In  such  case,  therefore,  if  the  occupier  resist  the 
officer,  and  in  the  struggle  kill  him,  it  is  only  manslaughter.  For 
every  man's  house  is  his  castle  for  safety  and  repose  to  himself 
and  his  family.  It  is  not  murder,  because  it  was  unlawful  for 
the  officer  to  break  into  the  house ;  but  it  is  manslaughter, 
because  he  knew  him  to  be  a  bailiff.  Had  he  not  known  him  to 
be  a   bailiff,  it  would  have  been  no   felony,  because    done  in  his 


1002  MURDER. 

house.  1  Hale,  P.  C.  458.  This  last  instance,  says  Mr.  East,  which 
is  set  in  opposition  to  the  second,  must  be  understood  to  include  at  least 
a  reasonable  ground  of  suspicion  that  the  party  broke  into  the  house 
with  a  felonious  intent,  and  that  the  party  did  not  know,  or  had  no 
reason  to  believe,  that  he  was  only  a  trespasser.     1  East,  P.  C.  321 ,  322. 

The  privilege  is  confined  to  the  outer  doors  and  windows  only — for 
if  the  sheriff  or  a  peace  officer  enter  a  house  by  the  outer  door,  being 
open,  he  may  break  open  the  inner  doors,  and  the  killing  in  such 
case  would  be  murder.  1  Hale,  P.  C.  458.  If  the  party  whom  the 
officer  is  about  to  arrest,  or  the  goods  which  he  is  about  to  seize,  be 
within  the  house  at  the  time,  he  may  break  open  any  inner  doors  or 
windows  to  search  for  them,  without  demanding  admission.  Per 
Gibbs,  J.,  Hutchinson  v.  Birch,  4  Taunt.  619.  But  it  seems  that  if 
the  i)arty  against  whom  the  process  is  issued  be  not  within  the  house 
at  the  time,  the  officer  must  demand  admittance  before  he  will  be  jus- 
tified in  breaking  open  an  inner  door.  Ratcliffe  v.  Burton,  3  Bos.  & 
Pul.  223.  So  if  the  house  be  that  of  a  stranger,  the  justification  of  the 
officer  will  depend  upon  the  fact  of  the  goods,  or  the  persons  against 
whom  he  is  proceeding,  being  in  the  house  at  the  time.  Cooke  v.  Birt, 
5  Taunt.  765,  1  E.  C.  L.;  Johnson  v.  Leigh,  6  Taunt.  240,  1  E.  C. 
L.;  1  Russ.  on  Cri.  751,  5th  ed.  An  officer  attempting  to  attach  the 
goods  of  the  prisoner  in  his  dwelling-house,  put  his  hand  over  the 
hatch  of  the  door  which  was  divided  into  two  parts,  the  lower  hatch 
being  closed  and  the  higher  open.  A  struggle  ensued  between  the  offi- 
cer and  a  friend  of  the  prisoner,  in  the  course  of  which  the  officer  hav- 
ing prevailed,  the  prisoner  shot  at  and  killed  him,  and  this  was  held 
murder.  R.  v.  Baker,  1  East,  P.  C.  323.  In  the  above  case  there 
was  proof  of  a  previous  resolution  in  the  prisoner  to  resist  the  officer 
whom  he  afterwards  killed.     1  East,  P.  C.  323. 

The  privilege  likewise  extends  only  to  those  cases  where  the  occu- 
pier or  any  of  his  family,  who  have  their  domestic  or  ordinary  resi- 
dence there,  are  the  objects  of  the  arrest ;  and  if  a  stranger,  whose 
ordinary  residence  is  elsewhere,  upon  pursuit,  takes  refuge  in  the 
house  of  another,  such  house  is  no  castle  of  his,  and  he  cannot  claim 
the  benefit  of  sanctuary  in  it.  Foster,  320,  321  ;  1  East,  P.  C.  323. 
But  this  must  be  taken  subject  to  the  limitation  already  expressed  in 
regard  to  breaking  open  inner  doors  in  such  cases,  viz.,  that  the 
*800l  *^^^^''  ^v'^1  <^*'^^y  ^^6  justified  by  the  fact  of  the  person  sought 
J  being  found  there.  Supra;  1  East,  P.  C.  324:  1  Russ.  Cri. 
751,  5th  cd. 

The  privilege  is  also  confined  to  arrests  in  the  first  instance;  for  if 
a  man  legally  arrested  (and  laying  hands  on  the  prisoner,  and  pro- 
nouncing the  words  of  arrest,  constitute  an  actual  arrest)  escape  from 
the  officer,  and  take  shelter  in  his  own  house,  the  officer  may,  upon 
fresh  pursuit,  break  open  the  outer  door,  in  order  to  retake  him,  hav- 
ing first  given  due  notice  of  his  business,  and  demanded  admission, 
and  having  been  refused.  If  it  be  not,  however,  on  fresh  pursuit,  it 
seems  that  the  officer  should  have  a  warrant  from  a  magistrate.  1 
Hale,  P.  C.  459  ;  Foster,  320 ;  1  East,  P.  C.  324. 


MURDER.  1003 

Peace  officers  killed  or  killing  others  in  apprehending  them — 
mode  (where  an  officer  is  killed)  in  which  that  killing  has  been  ef- 
fected. It  is  a  matter  of  very  serious  consideration,  whether  in  all  cases 
where  a  peace  officer  or  other  person  is  killed  while  attempting  to  en- 
force an  illegal  warrant,  such  killing  shall,  under  circumstances  of  great 
cruelty  or  unnecessary  violence,  be  deemed  to  amount  to  man- 
slaughter only.  In  R.  v.  Curtis,  Foster,  1.35,  ante,  p.  796,  the  pris- 
oner being  in  the  house  of  a  man  named  Cowling,  who  had  made  his 
escape,  swore  that  the  first  person  who  entered  to  retake  Cowling 
should  be  a  dead  man,  and,  immediately  upon  the  officers  breaking 
open  the  door,  struck  one  of  them  on  the  head  with  an  axe  and  killed 
him.  This  was  held  murder,  and  a  few  of  the  judges  Avere  of  opinion 
that  even  if  the  officers  could  not  have  justified  breaking  open  the 
door,  yet  that  it  would  have  been  a  bare  trespass  in  the  house  of 
Cowling,  without  any  attempt  on  the  property  or  person  of  the 
prisoner  ;  and  admitting  that  a  trespass  in  the  house,  with  an  intent 
to  make  an  unjustifiable  arrest  of  the  owner,  could  be  considered  as 
some  provocation  to  a  bystander,  yet  surely  knocking  a  man's  brains 
out,  or  cleaving  him  down  with  an  axe,  on  so  slight  a  provocation, 
savored  rather  of  brutal  rage,  or,  to  speak  more  properly,  of  diabolical 
mischief,  than  of  human  frailty,  and  it  ought  always  to  be  remem- 
bered, that  in  all  cases  of  homicide  upon  sudden  provocation,  the  law 
indulges  to  human  frailty,  and  to  that  alone.  So  in  R.  v.  Stockley, 
ante,  p.  792,  the  fact  that  the  prisoner  deliberately  resolved  upon 
shooting  Welsh,  in  case  he  offered  to  arrest  him  again,  was,  it  has  been 
argued,  sufficient  of  itself  to  warrant  a  conviction  for  murder,  inde- 
pendently of  the  legality  of  the  warrant.     1  East,  P.  C.  311. 

When  a  bailiff,  having  a  warrant  to  arrest  a  man,  pressed  early 
into  his  chamber  Avith  violence,  but  not  mentioning  his  business,  and 
the  man  not  knowing  him  to  be  a  bailiff,  nor  that  he  came  to  make 
an  arrest,  snatched  down  a  sword  hanging  in  his  chamber,  and 
stabbed  the  bailiff,  whereof  he  died  ;  this  was  held  not  to  be  murder, 
for  the  prisoner  did  not  know  but  that  the  party  came  to  rob  or  kill 
him,  when  he  thus  violently  broke  into  his  chamber  without  declar- 
ing his  business.  1  Hale,  P.  C.  470.  A  bailiff  having  a  warrant  to 
arrest  C.  upon  a  ca.  sa.,  went  to  his  house  and  gave  him  notice.  C. 
threatened  to  shoot  him  if  he  did  not  depart,  but  the  bailiff,  disre- 
garding the  threats,  broke  open  the  windows,  upon  which  C.  shot 
and  killed  him.  It  was  ruled — 1,  that  this  was  not  murder,  because 
the  bailiff  had  no  right  to  break  the  house ;  2,  that  it  was  man- 
slaughter, because  C.  knew  him  to  be  a  bailiff;  but,  3,  had  he  not 
known  him  to  be  a  bailiff,  it  had  been  no  felony,  because  done  in 
*defence  of  his  house.  R.  v.  Cook,  1  Hale,  P.  C.  458 ;  Cro.  ^^Q/^1 
Car.  537 ;  W.  Jones,  429.  L  «^^A 

These  decisions  would  appear  to  countenance  the  position,  that 
where  an  officer  attempts  to  execute  an  illegal  warrant,  and  is  in  the 
first  instance  resisted  with  such  violence  by  the  party  that  death 
ensues  it  will  amount  to  manslaughter  only.  But  it  should  seem 
that  in  analogy  to  all  other  cases  of  provocation,  this  position  re- 


1004  MURDER. 

quires  some  qualification.  If  it  be  possible  for  the  party  resisting  to 
ellet't  his  object  with  a  less  degree  of  violence  than  the  infliction  of 
death,  a  great  degree  of  unnecessary  violence  might,  it  is  conceived, 
be  evidence  of  such  malice  as  to  prevent  the  crime  from  being  re- 
duced to  manslaughter.^  In  R.  v.  Thompson,  1  INIoo.  C  C  80,  "where 
the  officer  was  about  to  make  an  arrest  on  an  insufficient  chai-ge,  the 
judges  adverted  to  the  fact  that  the  prisoner  was  in  such  a  situation 
that  he  could  not  get  away.  In  these  cases,  it  would  seem  to  be  the 
duty  of  the  party  whose  liberty  is  endangered  to  resist  the  officer 
with  as  little  violence  as  possible,  and  that  if  he  uses  great  and  un- 
necessary violence,  unsuited  both  to  the  provocation  given  and  to 
the  accomplishment  of  a  successful  resistance,  it  will  be  evidence  of 
malice  sufficient  to  support  a  charge  of  murder.  See  also  R.  v, 
Curvan,  1  Moo.  C.  C.  132,  ante,  p.  774.  So  also  where  as  in  R.  v. 
Stockley  (ante,  p.  792),  and  R.  v.  Curtis  (ante,  p.  796),  the  party  appears 
to  have  acted  from  motives  of  express  malice,  there  seems  to  be  no 
reason  for  withdrawing  such  from  the  operation  of  the  general  rule 
[vide  ante,  p.  783),  that  provocation  will  not  justify  the  party  killing, 
or  prevent  his  oft'ence  from  amounting  to  murder,  where  it  is  proved 
that  he  acted  at  the  time  from  express  malice.  And  of  this  opinion 
appears  to  be  Mr.  East,  who  says,  "  It  may  be  worthy  of  consideration 
whether  the  illegality  of  an  arrest  does  not  place  the  officer  attempt- 
ing it  exactly  on  the  same  footing  as  any  other  wrong-doer."  1  East, 
P.  C.  328. 

It  may  be  remarked,  that  the  question  is  fully  decided  in  the 
Scotch  law,  the  rule  being  as  follows : — In  resisting  irregular  or 
defective  warrants,  or  warrants  executed  in  an  irregular  way,  or 
upon  the  wrong  person,  it  is  murder  if  death  ensue  to  the  officer  by 
the  assumption  of  lethal  weapons,  where  no  great  personal  violence 
has  been  sustained.  Alison's  Princ.  Cr.  Law  of  Scotl.  25.  If,  says 
Baron  Hume,  instead  of  submitting  for  the  time,  and  looking  for 
redress  to  the  law,  he  shall  take  advantage  of  the  mistake  to  stab 
or  shoot  the  officer,  when  no  great  struggle  has  yet  ensued,  and  no 
previous  harm  of  body  has  been  sustained,  certainly  he  cannot  be 
found  guilty  of  any  low-er  crime  than  murder.  1  Hume,  250.  The 
distinction  appears  to  be,  says  Mr.  Alison,  that  the  Scotch  law  re- 
probates the  immediate  assumption  of  lethal  weapons  in  resisting  an 
illegal  warrant,  and  will  hold  it  as  murder  if  death  ensue  by  such 
immediate  use  of  these,  the  more  especially  if  the  informality  or 
error  was  not  known  to  the  party  resisting  ;  whereas,  the  English 
practice  makes  such  allowance  for  the  irritation  consequent  upon  the 
irregular  interference  Avith  liberty,  that  it  accounts  death  inflicted 
under  such  circumstances  as  manslaughter  only.     Alison's  Prin.  Cr. 

'  Homicide  in  resisting  arrest  by  a  peace  officer,  is  not  justifiable,  even  when  the 
arrest  is  illegal,  unless  the  prisoner  is  in  danger.  State  v.  Cantiney,  34  jNIinn.  1.  To 
kill  a  peace  officer  serving  a  warrant  even  on  void  process,  is  murder.  But  that  pro- 
cess was  void  may  reduce  the  degree  ;  the  question  of  malice  is  for  the  jury.  State  r. 
Spaulding,  34  Minn.  861.  But  where  a  statute  authorizes  an  arrest  witliout  warrant 
tlie  ofllicer  is  justified  in  making  the  arrest,  and  resistance  to  death  is  murder.  Ballard 
V.  Slate,  43  O.  St.  340. 


MURDER.  1005 

Law  of  Scotl.  28  ;  see  also  1  Russ.  Cri.  741,  742  {g),  5th  ed.,  note  by 
Greaves. 

Ill  case  of  death  ensuing,  where  resistance  is  made  to  officers  in 
the  execution  of  their  duty,  it  sometimes  becomes  a  question  iiow 
far  the  acts  of  third  persons,  who  take  a  part  in  such  resistance,  or 
*attemptto  rescue  the  prisoner,  shall  be  held  to  affect  the  latter,  ^*o/^9 
If  the  party  who  is  arrested  yield  himself,  aud  make  no  resist-  L 
anee,  but  others  endeavor  to  rescue  him,  and  he  do  no  act  to  declare  his 
joining  with  them,  if  those  who  come  to  rescue  him  kill  any  of  the 
bailiffs,  it  is  murder  in  them,  but  not  in  the  party  arrested  ;  other- 
wise, if  he  do  any  act  to  countenance  the  violence  of  the  rescuers. 
R.  V.  Stanley,  Kel.  87 ;  1  Russ.  Cri.  750,  5th  ed.  Jackson  and  four 
other  robbers  being  pursued  by  the  hue  and  cry,  Jackson  turned 
round  upon  his  pursuers,  the  rest  being  in  the  same  field,  and  re- 
fusing to  yield,  killed  one  of  them.  By  five  judges  who  were  present 
this  was  held  murder,  and  inasmuch  as  all  the  robbers  were  of  a 
company,  and  made  a  common  resistance,  and  one  animated  the 
others,  all  those  who  were  of  the  company  in  the  same  field,  though 
at  a  distance  from  Jackson,  were  all  principals,  viz.,  present  aiding, 
and  abetting.  They  also  resolved,  that  one  of  the  malefactors  being 
apprehended  a  little  before  the  party  was  hurt,  and  being  in  custody 
when  the  stroke  was  given,  was  not  guilty,  unless  it  could  be  proved 
that  after  he  was  apprehended  he  had  animated  Jackson  to  kill  the 
party.  1  Hale,  P.  C.  464.  Where  A.  beat  B.,  a  constable  in  the 
execution  of  his  duty,  and  they  parted,  and  then  C,  a  friend  of  A., 
fell  upon  the  constable,  and  killed  him  in  the  struggle,  but  A.  Mas 
not  engaged  in  the  affair  after  he  parted  from  B.,  it  was  held  that 
this  was  murder  only  in  C,  and  A.  was  acquitted,  because  it  was  a 
sudden  quarrel,  and  it  did  not  appear  that  A.  and  C.  came  upon  any 
design  to  ill-use  the  constable.     Anon.  1  East,  P.  C.  296. 

It  is  matter  of  fact  for  the  jury  in  these  cases  to  determine  in 
what  character  the  third  party  intervened.  If  he  interfered  for  the 
purpose  of  aiding  the  person  in  custody  to  rescue  himself,  and  in  so 
doing  killed  the  bailiff,  it  would  be  murder,  but  if,  not  knowing  the 
cause  of  the  struggle,  he  interposed  with  intent  to  prevent  mischief, 
it  would  not  amount  to  murder.  1  East,  P.  C.  318 ;  1  Russ.  Cri.  757, 
5th  ed.     See  Kel.  86  ;  Sid.  159. 

The  prisoners  were  indicted  for  murder.  It  appeared  that  a  body 
of  persons  had  assembled  together  and  were  committing  a  riot. 
The  constables  interfering  for  the  purpose  of  dispersing  the  crowd 
and  apprehending  the  offenders,  resistance  "svas  made  to  them  by  the 
mob,  and  one  of  the  constables  was  beaten  severely,  and  afterwards 
died.  The  prisoners  all  took  part  in  the  violence  used,  some  by 
beating  him  with  sticks,  some  by  throwing  stones,  and  some  by 
striking  him  with  their  fists.  Alderson,  B.,  told  the  jury  that  in 
considering  the  case,  they  would  have  to  determine  whether  all  the 
prisoners  had  the  common  intent  of  attacking  the  constables ;  if  so, 
each  of  them  was  responsible  for  all  the  acts  of  all  the  others  done 
for  that  purpose,  aud  if  all  the  acts  done  by  each  if  done  by  one 


1006  MITRDER. 

man,  would  together  show  such  violence,  and  so  long  continued,  that 
from  tlicm  the  jury  might  infer  an  intention  to  kill  the  constable,  it 
would  be  murder  in  them  all ;  but  if  they  could  not  infer  such  au 
intention,  they  ought  to  find  them  guilty  of  manslaughter.  The 
prisoners  were  convicted  of  the  latter  offence.  R.  v.  Macklin,  2  Lewin, 
C.  C.  225. 

Impressment  of  seamen.  Wliether  persons  in  her  Majesty's  navy 
acting  in  the  impressment  of  seamen,  are  to  be  held  to  enjoy,  in  the 
execution  of  their  duty,  the  same  privilege  as  a  peace  officer  acting 
by  virtue  of  a  warrant,  does  not  seem  to  be  well  settled.  It  is  clear, 
*8n'"*n  *liowever,  that  in  order  to  justify  the  act,  there  must  be  a  war- 
"^-l  rant,  and  that  it  must  be  executed  by  a  proper  officer.  It  is,  how- 
ever, laid  down  by  JNIr.  East,  that  if  there  be  a  proper  officer,  with  a  legal 
warrant  to  impress,  and  the  party  endeavored  to  be  taken,  being  a  fit 
object  for  that  service,  refuse  to  submit,  and  resist  and  kill  the  officer, 
or  any  of  his  assistants,  they  doing  no  more  than  is  necessary  to  impress 
the  mariner,  it  will  be  murder.  1  East,  P.  C.  308.  On  the  other 
hand,  if  the  party  attempted  to  be  pressed  be  killed  in  such  a  strug- 
gle, it  seems  justifiable,  provided  the  resistance  could  not  be  other- 
wise overcome ;  and  the  officer  need  not  give  way,  but  may  freely 
repel  force  by  force.  Id.  The  following  is  one  of  the  few  cases  to 
be  found  on  this  subject,  and  it  can  scarcely  be  said  to  recognize  any 
principle  with  regard  to  the  practice  of  impressment : — An  officer  in 
the  impress  service  put  one  of  his  seamen  on  board  a  boat  belonging 
to  one  William  Collyer,  a  fisherman,  with  intent  to  bring  it  under  the 
stern  of  another  vessel,  in  order  to  see  if  there  were  any  fit  objects  for 
the  impress  service  on  board.  The  boat  steered  away  in  another  direc- 
tion, and  the  officer  pursued  in  another  vessel  for  three  hours,  firing 
several  shots  at  her  with  a  musket  loaded  with  ball,  for  the  purpose  of 
hilting  the  halyards  and  bringing  the  boat  to,  which  was  found  to  be 
the  usual  way,  one  of  which  shots  unfortunately  killed  Collyer.  The 
Court  said  it  Avas  impossible  for  it  to  be  more  than  manslaughter. 
This,  it  may  be  presumed,  was  on  the  ground  that  the  musket  was 
not  levelled  at  the' deceased,  nor  any  bodily  hurt  intended  to  him. 
But  inasmuch  as  such  an  act  was  calculated  to  breed  danger,  and  was 
not  warranted  by  law,  though  no  bodily  hurt  was  intended,  it  was 
manslaughter,  and  the  defendant  was  burned  in  the  hand.  R.  v. 
Phillip,  Cowper,  832 ;  1  East,  P.  C.  308.  The  following  cases  only 
establish  the  position,  that  the  impressment  of  persons  without  a  war- 
rant is  an  illegal  proceeding,  and  that  the  parties  concerned  do  not  enjoy 
the  protection  afforded  to  ministers  of  the  law  in  the  execution  of 
their  duty.  The  lieutenant  of  a  pressgang,  to  whom  the  execution  of 
a  warrant  was  properly  deputed,  remained  in  King  Road  in  the  port 
of  Bristol,  while  his  boat's  crew  went  some  leagues  down  the  channel 
by  his  directions  to  press  seamen.  It  was  held  that  this  impressment 
was  illegal,  and  one  of  the  pressgang  being  killed  in  the  furtherance 
of  that  service,  by  a  mariner,  in  a  vessel  which  tliey  had  boarded  with 
intent  to  press  such  persons  as  they  could   meet  with,  it  was  ruled  to 


MURDER.  1007 

be  only  manslaughter,  though  no  personal  violence  had  been  offered  by 
the  prcssgang.  R.  v.  Broadfoot,  Foster,  154.  So  where  the  mate  of 
a  ship  and  a  party  of  sailors,  without  the  captain,  who  had  the  war- 
rant, or  the  lieutenant,  who  was  deputed  to  execute  it,  impressed  a 
man,  and  on  his  resisting,  the  prisoner,  one  of  the  party,  struck  him 
a  violent  blow  with  a  large  stick,  of  which  he  died  some  days  after- 
wards, it  was  adjudged  murder.  R.  i'.  Dixon,  1  East,  P.  C.  313.  In 
this  case  the  party  attempted  to  be  impressed  was  not  a  mariner,  and 
the  attempt  to  impress  him  was  therefore  illegal  on  that  ground,  as 
well  as  upon  the  ground  that  neither  the  captain  nor  lieutenant  was 
present.  1  East,  P.  C.  313.  A  press  warrant  had  been  directed  to 
Lieutenant  Wm,  Palmer,  enjoining  all  mayors,  etc.,  to  assist  him  and 
those  employed  by  him  in  the  execution  thereof.  Palmer  gave  verbal 
orders  to  the  prisoners  and  several  others  to  impress  certain  seafaring 
men,  but  the  delegation  was  held  to  be  clearly  bad,  and  the  execution 
of  the  warrant  by  the  prisoners.  Palmer  not  being  there,  to  be  illegal, 
*though  it  was  proved  to  be  the  constant  custom  of  the  navy  r*oA4 
to  delegate  the  authority  in  this  manner.  R.  v,  Borthwick,  1  *- 
Dough  207  ;  1  East,  P.  C.  313. 

A  sailor  in  the  royal  navy,  on  duty  as  a  sentinel,  has  no  authority 
to  fire  upon  persons  approaching  the  ship  against  orders.  The  pris- 
oner was  sentinel  on  board  the  Achille,  when  she  was  paying  off.  The 
orders  to  him  from  the  preceding  sentinel  were  to  keep  off  all  boats, 
unless  they  had  officers  with  uniforms  in  them,  or  unless  the  officers 
on  deck  allowed  them  to  approach,  and  he  received  a  musket,  three 
blank  cartridges,  and  three  balls.  Some  boats  pressing  forwards,  he 
called  upon  them  repeatedly  to  stop ;  but  one  of  them  persisted,  and 
came  close  under  the  ship.  He  then  fired  at  a  man  who  was  in  the 
boat,  and  killed  him.  It  was  put  to  the  jury  whether  he  did  not  fire 
under  the  mistaken  impression  that  it  M^as  his  duty,  and  they  found 
that  he  did.  On  a  case  reserved,  the  judges  resolved  unanimously 
that  it  was  nevertheless  murder.  They  thought  it,  however,  a  proper 
case  for  pardon ;  and  further,  they  were  of  opinion  that  if  the  act  had 
been  necessary  for  the  preservation  of  the  ship,  as  if  the  deceased  had 
been  stirring  vip  a  mutiny,  the  sentinel  would  have  been  justified. 
R.  V.  Thomas,  1  Russ.  Cri.  731,  5th  ed. 

Killing  in  defence  of  property.  We  have  seen,  ante,  pp.  737,  772, 
that  a  man  may  repel  force  by  force  in  defence  of  his  person  or  prop- 
erty against  any  one  intending  to  commit  a  felony,  or  in  some  cases  an. 
assault  against  him,  and  in  such  cases  the  question  which  arises  is, 
whether  the  act  was  manslaughter  or  justifiable  homicide ;  but  in  the 
following  cases  the  question  arose  whether  the  offence  amounted  to 
murder  or  not.^ 

^  The  belief  that  a  person  designs  to  kill  me  will  not  prevent  my  killing  him  from 
being  murder,  unless  he  is  making  some  attempt  to  execute  his  design,  or  at  least  is  in 
an  apparent  situation  to  do  so,  and  thereby  induces  me  reasonably  to  think  that  he 
intends  to  do  it  immediately.  State  v.  Scott,  4  Ired.  Law,  409.  Whenever  there 
is  reasonable  ground  to  believe  that  there  is  a  design  to  destroy  life,  to  rob,  or  to  com- 
mit a  felony,  a  killing  to  arrest  such  a  design  is  justifiable;  but  it  is  for  the  jury  to 


1008  MURDER. 

Where  a  trespass  is  committed  merely  against  the  property  of  an- 
other, and  without  any  felonious  intent,  the  law  does  not  admit  the 

judge  of  the  reasonableness  of  such  apprehension.  State  v.  Harris,  1  Jones's  Law, 
190;  Dill  ('.  State,  -o  Ala.  15;  Dyson  v.  State,  20  Miss.  .■:562.  A  person  having  rea- 
sonable appreliension  of  great  personal  violence,  involving  imminent  peril  to  life  or 
limb,  may  protect  hiin.self  even  at  the  risk  of  his  assailant's  life,  if  necessary.  Plolmea 
V.  State,  23  Ala.  17 ;  Carroll  v.  State,  Id.  28 ;  see  Stewart  v.  State,  1  ().  St.  66;  Eeppy 
v.  State,  2  Head,  217  ;  Payne  v.  Commonwealth,  1  Mete.  370;  People  v.  Cole,  4  Parker, 
C.  R.  3') ;  Pond  V.  People,  8  Mich.  150 ;  Dupree  v.  State,  33  Ala.  380 ;  Logue  v.  Com- 
monwealth, 38  Pa.  St.  265;  Hinton  v.  State,  24  Tex.  454;  Schiner  v.  People,  23  111. 

17  ;  Maher  i>.  People,  24  Id.  241 ;  State  v.  O'Connor,  31  Mo.  389;  Rapp  v.  Common- 
wcidtli,  14  B.  Mon.  614;  McAuley  v.  State,  3  Ja.  435;  Keener  v.  State,  18  Ga.  194; 
Teal  V.  State,  22  Ga.  75;  Staten  v.  State,  30  Miss.  619;  Meredith  r.  Commonwealth, 

18  B.  Mon.  49 ;  State  v.  Swift,  14  La.  An.  827.  When  a  man  expects  to  be  attacked, 
the  right  to  defend  himself  does  not  arise  imtil  lie  has  done  everything  to  avoid  that 
necessity.  People  v.  Sullivan,  3  Seld.  396;  Mitcliell  v.  State,  22  Ga.  211;  Lyon  y. 
State,  Id.  399 ;  McPherson  v.  State,  Id.  478 ;  State  v.  Ingold,  4  Jones's  Law,  216 ; 
Colton  V.  State,  31  Miss.  504  ;  People  v.  Hurley,  8  Cal.  390 ;  State  v.  Thompson,  9  la. 
188  ;  State  v.  Baker,  1  Jones's  Law,  267  ;  United  States  v.  Mingo,  2  Curt.  C.  C.  1 ; 
Haynes  v.  State,  17  Ga.  465.  As  to  threats  by  deceased,  see  Keener  v.  State,  18  Ga. 
194;  Atkins  v.  State,  16  Ark.  508 ;  State  v.  Hays,  23  Mo.  287 ;  Wall  v.  State,  18  Tex. 
682 ;  Lingo  v.  State,  29  Ga.  470;  Dupree  v.  State,  33  Ala.  380  ;  Newcomb  v.  State,  37 
Miss.  383 ;  Coker  v.  State,  20  Ark.  53  ;  People  v.  Lombard,  17  Cal,  316  ;  Campbell  v. 
People,  16  111.  17  ;  Landes  v.  State,  12  Tex.  462.  When  he  wlio  kills  another  seeks 
and  provokes  an  assault  on  himself,  in  order  to  have  a  pretext  for  stabbing  an  adver- 
sary, and  does,  on  being  assaulted,  stab  and  kill  him,  such  killing  is  not  excusable 
homicide  in  self-defence.     Stewart  v.  State,  1  O.  St.  66. 

For  cases  of  self-defence,  see  State  v.  Sloan,  47  Mo.  604 ;  Greschea  v.  People,  53  111. 
295 ;  State  v.  King,  22  La.  An.  454  ;  Evans  v.  State,  33  Ga.  4 ;  Galvin  v.  State,  6  Cold. 
283  ;  People  v.  Scroggins,  37  Cal.  676  ;  People  v.  Lamb,  54  Barb.  342  ;  Commonwealth 
V.  Carey,  2  Brewst.  404 ;  Adams  v.  People,  47  III.  376;  State  v.  Tachanatah,  64  N.  C. 
614 ;  Commonwealth  v.  Drum,  58  Ga.  St.  9 ;  State  v.  Collins,  32  la.  36 ;  Bohannon  v. 
Commonwealth,  8  Bush,  481 ;  Bound  v.  State,  43  Ga.  88  ;  Head  v.  State,  44  jMiss.  731 ; 
Evans  v.  State,  Id.  762  ;  State  v.  Bertrand,  3  Or.  61 ;  State  r.  Conally,  Id.  69  ;  Myers 
V.  State,  33  Tex.  525  ;  People  v.  Harjjer,  1  Edm.  180 ;  Floyd  v.  State,  36  Ga.  91 ; 
Phillips  V.  Commonwealth,  2  Duv.  328 ;  Patterson  v.  People,  46  Barb.  625 ;  People  v. 
Campbell,  30  Cal.  312;  Roach  r.'.  State,  34  Ga.  78;  Stockton  r.  State,  25  Tex.  772; 
Johnson  v.  State,  27  Id.  758  ;  State  t;.  Starr,  38  Mo.  270  ;  Murphy  v.  People,  37  III. 
447  ;  De  Forest  v.  State,  21  Ind.  23;  Goodall  ?-.  State,  1  Or.  333.  In  a  trial  for  mur- 
der, an  instruction  that  an  assaulted  party  may  in  defence  inflict  a  mortal  wound  with 
a  dangerous  weapon,  and  be  acquitted  of  all  oflence,  provided  he  did  not  intend  to 
cause  death,  without  reference  to  any  circumstances  making  the  giving  of  such  a 
woun  )  necessary,  or  showing  that  he  had  in  good  faith  undertaken  to  avoid  further 
struggle,  is  erroneous.  People  v.  Gatewood,  20  Cal.  146.  R.  and  I.  quarrelled,  and  I. 
drew  a  knife,  R.  drew  a  pi.stol,  and  while  his  eyes  were  fixed  on  I.,  who  had  advanced 
towards  him,  the  pistol  was  discharged  accidentally  and  killed  a  bystander  :  held  ex- 
cusable homicide.  Aaron  r.  State,  .31  Ga.  167.  If  one  points  a  loaded  gun  at  an- 
other, under  circumstances  which  would  not  justify  shooting  him,  and  the  one  aimed 
at  seizes  it  and  struggles  for  it  to  save  himself  from  the  menaced  injury  from  it,  and  in 
the  struggle  the  gun  is  accidentally  discharged,  causing  the  deatli  of  the  person  aimed 
at,  the  one  pointing  the  gun  cannot  claim  that  this  homicide  was  excusable  ;  other- 
wise, if  the  circumstances  would  justify  the  shooting.  State  r.  Benham,  23  la.  154. 
When  a  person  who  has  assaulted  anotlierwith  intent  to  kill,  has  succeeded  in  wholly 
withdrawing  from  the  conflict,  and  in  good  faith  lias  retreated  to  a  place  of  ajiparent 
security,  his  riglit  of  self-defence  is  fully  restored.  StofTer  ?•.  State,  15  O.  St.  47.  Retreat 
is  not  always  a  condition  which  must  precede  the  right  of  self-defence.  Creek  v.  State, 
24  Ind.  154,  The  defendant  cannot,  in  order  to  sustain  a  plea  of  self-defence,  set  up  a 
necessity  which  he  knowingly  and  willingly  brought  on  himself.  State  v.  Neely,  20 
la.  108.  Self-defence  no  plea  where  the  defendant  has  maliciously  provoked  an  assaidt. 
Isaacs  V.  State,  25  Tex.  174.  Where  on  trial  of  an  indictment  for  murder,  the  fact 
of  killing  witli  a  deadly  weapon  was  established,  a  cliarge  to  tlie  jury,  that  if  they 
believe  tliat  the  defendant  sought  a  quarrel  with  the  deceased,  in  order  to  have  r.n 
opportunity  to  gratify  his  malice  by  taking  his  life,  then  no  provocation,  no  danger  to 


MURDER.  1009 

force  of  the  provocation  to  be  sufficient  to  warrant  the  owner  of  prop- 
erty to  make  use,  in  repelling  the  trespasser,  of  any  deadly  or  dan- 
gerous weapon.^  Thus,  if  upon  the  sight  of  a  person  breaking  his 
hedges,  the  owner  were  to  take  up  a  hedge-stake  and  knock  him  on 
the  head,  and  kill  him,  this  would  be  murder;  because  the  violence 
was  much  beyond  the  provocation.  Foster,  291  ;  1  East,  P.  C.  288, 
vide  sv.pra.  However  provoking  the  circumstances  of  the  trespass 
may  be,  they  will  not  justify  the  party  in  the  use  of  deadly  weapons. 
Lieutenant  Moir,  having  been  greatly  annoyed  by  persons  trespassing 
upon  his  farm,  repeatedly  gave  notice  that  he  would  shoot  any  one  who 
did  so,  and  at  length  discharged  a  gun  at  a  person  who  was  trespass- 
ing, and  wounded  him  in  the  thigh,  which  led  to  erysipelas,  and  the 
man  died.  He  had  gone  home  for  a  gun  on  seeing  the  trespasser,  but 
no  personal  contest  had  ensued.  Being  indicted  for  murder,  he  was 
found  guilty  and  executed.  R.  v.  Moir,  1828.  See  this  case  as 
stated  in  R.  v.  Price,  7  C.  &  P.  178,  32  E.  C.  L.  But  if  the  owner 
used  only  a  weapon  not  likely  to  cause  death,  and  with  intent  only  to 
chastise  the  trespasser,  and  death  ensue,  this  will  be  manslaughter 
only.     Foster,  291  ;  1  East,  P.  C.  288. 

The  rules,  with  regard  to  the  defence  of  the  possession  of  a  house, 

himself  thus  brought  on,  would  excuse  the  killing :  held  correct.  Murphy  v.  State,  Shep. 
Sel.  Cas.  48 ;  s.  c.  37  Ala.  142.  It  is  not  error  for  the  court  to  instruct  the  jury,  that 
if  they  believe  from  the  evidence,  that  the  defendant  killed  tlie  deceased,  when  there  was 
a  reasonable  apprehension  on  his  part,  that  the  deceased  was  about  to  inflict  upon  him 
great  bodily  harm,  tliey  should  acquit  the  defendant.  Fahnestock  v.  State,  23  Ind. 
231.  A  mere  assault  without  weapon,  by  a  violent  and  quarrelsome  man,  where  there 
is  no  reason  to  fear  great  bodily  harm,  will  not  justify  a  homicide.  State  v.  Kennedy, 
20  la.  569.  If  a  party  deliberately  kills  another  to  prevent  a  mere  trespass  to  prop- 
erty, he  is  guilty  of  murder.  State  v.  Brandon,  8  Jones  (N.  C.)  Law,  463.  The  pro- 
vocation of  trespassing  on  the  defendant's  land,  is  not  such  as  tlie  law  will  recognize 
as  sufficient  to  reduce  the  olience  of  killing  below  murder.  State  v.  Slieppey,  10 
Minn.  223.  In  an  attempt  to  recapture  property  taken  by  a  trespasser,  the  owner 
cannot  be  justified  in  a  resort  to  an  unsual  degree  of  violence,  or  to  means  calcu- 
lated to  endanger  life.  Kunkle  v.  State,  32  Ind.  220.  A  man  may  not  place  instru- 
ments of  destruction  for  the  protection  of  liis  property  where  he  would  not  be  au- 
tliorized  to  take  life  with  his  own  hand  for  its  protection.  State  v.  Moore,  31  Conn. 
479.  No  defence  that  the  deceased  belonged  to  a  tribe  of  Indians  with  whom  war 
existed,  the  deceased  being  a  prisoner  at  the  time.  State  v.  Gut,  13  Minn.  341.  Upon 
trial  of  an  indictment  for  murder,  tiie  accused  may  prove  that  a  man  then  dead,  had 
a  short  time  before  the  homicide  told  him  that  deceased  had  armed  himself  to  kill 
him.     Carico  v.  Comnronwealth,  7  Bush,  124. 

If  one  man  deliberately  kill  another  to  prevent  a  mere  trespass  unon  property, 
whether  such  trespass  could  or  could  not  be  otherwise  prevented,  it  is  murder.  Harrison 
V.  State,  24  Ala.  67  ;  Noles  v.  State,  26  Id.  31.  If  the  trespass  is  forcible,  the  owner 
may  resist  the  entry,  but  may  not  kiU  the  assailant,  until  it  be  necessary  to  prevent  a 
felonious  destruction  of  property,  or  to  defend  himself  against  loss  of  life  or  great 
bodily  barm.  Carroll  v.  State,  23  Ala.  28 ;  State  v.  McDonald,  4  Jones's  Law,  19 ; 
People  I'.  Horton,  4  Mich.  67.  If  one  man  deliberately  kills  another  to  prevent  a 
mere  trespass  on  his  property,  whether  that  trespass  could  or  could  not  be  otherwise 
prevented,  it  is  murder ;  and  consequently  an  assault,  with  intent  to  kill,  cannot  be 
justified  on  the  ground  that  it  was  necessary  to  prevent  a  trespass  on  property.  State 
V.  Morgan,  3  Iredell's  N.  C.  Law  Rep.  186.  Defence  of  property  when  the  attack 
upon  it  is  only  a  trespass,  is  no  excuse  for  taking  life.  People  v.  Devine,  1  Edmunds, 
594.     State  v.  Wells,  1  Coxe,  424.    S. 

1  State  V.  Zellers,  2  Halst.  220  ;  Smith's  Case,  3  Roger's  Rec.  77  ;  Commonwealth  v. 
Drew  et  al.,  4  Mass.  391.    S. 

64 


1010  MURDER. 

are  thus  laid  down :  If  A.,  in  defence  of  his  house,  kill  B.,  a  trespasser, 
who  endeavors  to  make  an  entry  upon  it,  it  is  at  least  common  man- 
slaughter, unless  indeed  there  were  danger  of  his  life.  But  if  B.  had 
entered  the  house,  and  A.  had  gently  laid  his  hands  upon  him  to 
^  ^_-|  *turn  him  out,  and  then  B.  had  turned  upon  him  and  assaulted 
'  -•  him,  and  A.  had  killed  him  (not  being  otherwise  able  to  avoid 
the  assault,  or  retain  his  lawful  possession)  it  would  have  been  in  self- 
defence.  So  if  B.  had  entered  upon  him,  and  assaulted  him  first, 
though  his  entry  were  not  with  intent  to  murder  him,  but  only  as  a 
trespasser,  to  gain  the  possession,  in  such  a  case,  A.  being  in  his  own 
house,  need  not  fly  as  far  as  he  can,  as  in  other  cases  of  self-defence, 
for  he  has  the  protection  of  his  house  to  excuse  him  from  flying,  as 
that  would  be  to  give  up  possession  of  his  house  to  his  adversary. 
But  in  this  case  the  homicide  is  excusable  rather  than  justifiable.  1 
East,  P.  C.  287  ;  1  Hale,  P.  C.  445  ;  R.  v.  Cook,  Cro.  Car.  537 ;  Hale, 
P.  C.  458,  ante,  p.  801. 

Where  the  owner  of  a  public-house  was  killed  in  a  struggle  between 
him  and  those  who  unlawfully  resisted  his  turning  them  out  of  his 
house,  it  was  held  murder.  Two  soldiers  came  at  eleven  o'clock  at 
night  to  a  publican's  and  demanded  beer,  which  he  refused,  alleging 
the  unreasonableness  of  the  hour,  and  advised  them  to  go  to  their 
quarters,  whereupon  they  went  away,  uttering  imprecations.  In, an 
hour  and  a  half  afterwards,  when  the  door  %vas  opened  to  let  out  some 
company  detained  on  business,  one  of  the  soldiers  rushed  in,  the  other 
remaining  without,  and  renewed  his  demand  for  beer,  to  which  the 
landlord  returned  the  same  answer.  On  his  refusing  to  depart,  and 
persisting  on  having  some  beer,  and  offering  to  lay  hold  of  the  de- 
ceased, the  latter  at  the  same  instant  collared  him,  and  the  one  push- 
ing, the  other  pulling  towards  the  outer  door,  the  landlord  received  a 
violent  blow  on  the  head  from  some  sharp  instrument  from  the  other 
soldier,  which  occasioned  his  death.  Buller,  J.,  held  this  to  be  murder 
in  both,  notwithstanding  the  previous  struggle  between  the  land- 
lord and  one  of  them  ;  for  the  landlord  did  no  more  than  he  law- 
fully might,  which  was  no  provocation  for  the  cruel  revenge  taken, 
more  especially  as  there  was  reasonable  evidence  of  the  prisoners 
having  come  a  second  time,  with  a  deliberate  intention  to  use 
personal  violence,  in  case  their  demand  was  not  complied  with. 
R.  V.  Willoughby,  1  East,  P.  C.  288.  See  also  R.  v.  Archer,  ante, 
p.  726. 

The  following  case  illustrates  various  points  which  may  arise  in 
questions  respecting  the  defence  of  property.  The  prisoners  were 
indicted  for  murder  :  Me;ide  for  having  shot  one  Law  with  a  pistol, 
and  Belt  as  having  been  present  aiding  and  abetting  him.  It  appeared 
that  Meade  had  made  himself  obnoxious  to  the  boatmen  at  Scarbor- 
ough, by  giving  information  to  the  excise  of  certain  smuggling 
transactions  in  which  some  of  them  had  been  engaged  ;  and  the  boat- 
men, in  revenge,  having  met  with  him  on  the  beach,  ducked  him,  and 
were  in  the  act  of  throwing  him  into  the  sea,  when  he  was  rescued 
by  the  police.     The  boatmen,  however,  as  he  was  going  away,  called 


MURDER.  1011 

to  liim,  that  they  would  come  at  night  and  pull  his  house  down. 
His  house  was  about  a  mile  from  Scarborough.  In  the  middle  of  the 
night  a  great  number  of  persons  came  about  his  house,  singing  songs 
of  menace,  and  using  violent  language,  indicating  that  they  had  come 
with  no  friendly  or  peaceable  intention  ;  and  Meade,  under  an  appre- 
hension, as  he  alleged,  that  his  life  and  property  were  in  danger, 
fired  a  pistol,  by  which  Law,  one  of  the  party,  was  killed.  The  only 
evidence  against  Belt  was,  that  he  was  in  the  house  when  the  pistol 
was  fired,  and  a  voice  having  been  heard  to  cry  out  "  fire,"  it  was 
assumed  that  it  was  his  voice.  Per  Holroyd,  J.,  to  the  jury— A  civil 
*trespass  will  not  excuse  the  firing  of  a  pistol  at  a  trespasser  in  r>KcAft 
sudden  resentment  or  anger.  If  a  person  takes  forcible  pos-  L 
session  of  another  man's  close,  so  as  to  be  guilty  of  a  breach  of  the 
peace,  it  is  more  than  a  trespass.  So  if  a  man  with  force  invades  and 
enters  into  the  dwelling  of  another.  But  a  man  is  not  authorized  to 
fire  a  pistol  on  every  intrusion  or  invasion  of  his  house.  He  ought, 
if  he  has  a  reasonable  opportunity,  to  endeavor  to  remove  him  with- 
out having  recourse  to  the  last  extremity.  But  the  making  an  attack 
upon  a  dwelling,  and  especially  at  night,  the  law  regards  as  equivalent 
to  an  assault  on  a  man's  person  ;  for  a  man's  house  is  his  castle,  and 
therefore,  in  the  eye  of  the  law,  it  is  equivalent  to  an  assault,  but  no 
words  or  singing  are  equivalent  to  an  assault,  nor  will  they  authorize 
an  assault  in  return.  If  you  are  satisfied  that  there  was  nothing  but 
the  song,  and  no  appearance  of  further  violence — if  you  believe  that 
there  was  no  reasonable  ground  for  apprehending  further  danger,  but 
tliat  the  pistol  was  fired  for  the  purpose  of  killing,  then  it  is  murder. 
There  are  c^ses  where  a  person  in  the  heat  of  blood  kills  another,  that 
the  law  does  not  deem  it  murder,  but  lowers  the  offence  to  man- 
slaughter ;  as  where  a  party  coming  up  by  way  of  making  an  attack, 
and,  without  there  being  any  previous  apprehension  of  danger,  the 
party  attacked,  instead  of  having  recourse  to  a  more  reasonable  and 
less  violent  mode  of  averting  it,  having  an  opportunity  so  to  do,  fires 
on  the  impulse  of  the  moment.  If,  in  the  present  case,  you  are  of 
opinion  that  the  prisoners  were  really  attacked,  and  that  Law  and  his 
party  were  on  the  point  of  breaking  in,  or  likely  to  do  so,  and  execute 
the  threats  of  the  day  before,  they  were  perhaps  justified  in  firing  as 
they  did  ;  if  you  are  of  opinion  that  the  prisoners  intended  to  fire 
over  and  frighten,  then  the  case  is  one  of  manslaughter,  and  not  of 
self-defence.  With  regard  to  Belt,  there  is  no  evidence,  one  way  or 
the  other,  whether  there  was  or  was  not  any  other  person  in  the  house 
with  Meade,  although  there  is  no  doubt  that  he  was  there ;  you  are 
not,  however,  to  assume  in  a  case  where  a  man's  life  is  at  stake,  that 
because  a  man's  voice  was  heard,  it  was  the  vqiee  of  Belt.  R.  v.  Meade, 
1  Lewin,  C.  C.  184. 

Proof  in  cases  of  felo  de  se.  It  is  only  necessary  in  this  place  to 
notice  the  law  with  respect  to  self-murder,  so  far  as  it  aifects  third 
persons.  If  one  person  persuade  another  to  kill  himself,  and  the 
latter  do  so,  the  party  persuading  is  guilty  of  murder ;  and  if  he  per- 


1012  MURDER. 

snade  him  to  take  poison,  which  he  does  in  the  absence  of  the  per- 
suader, yet  the  latter  is  liable  as  a  principal  in  the  murder.^  1  Hale, 
P.  C.  431  ;  4  Rep.  81,  b.  The  prisoner  was  indicted  for  the  murder 
of  a  woman  by  drowning  her.  It  appeared  that  they  had  cohabited 
for  several  months  previous  to  the  woman's  death,  who  was  with  child 
by  the  prisoner.  Being  in  a  state  of  extreme  distress,  and  unable  to 
pay  for  their  lodgings,  they  quitted  them  on  the  evening  of  the  day 
on  which  the  deceased  was  drowned,  and  had  no  place  of  shelter. 
They  passed  the  evening  together  at  the  theatre,  and  afterwards  went 
to  Westminster  bridge  to  drown  themselves  in  the  Thames.  They 
got  into  a  boat,  and  afterwards  went  into  another  boat,  the  water 
where  the  first  boat  Avas  moored  not  being  of  sufficient  depth  to 
drown  them.  They  talked  together  for  some  time  in  the  boat  into 
which  they  had  got,  the  prisoner  standing  with  his  foot  on  the  edge 
of  the  boat  and  the  woman  leaning  upon  him.  The  prisoner  then 
found  himself  in  the  water,  but  whether  by  actually  throwing  himself 
*sn71  *^"'  ^^  ^y  accident,  did  not  appear.  He  struggled  and  got  back 
-I  into  the  boat  again,  and  then  found  that  the  woman  was  gone. 
He  endeavored  to  save  her,  but  could  not  get  to  her,  and  she  was 
drowned.  In  his  statement  before  the  magistrate  he  said,  he  intended 
to  drown  himself,  but  dissuaded  the  woman  from  following  his 
example.  The  judge  told  the  jury,  that  if  they  believed  the  prisoner 
only  intended  to  drown  himself,  and  not  that  the  woman  should  die 
with  him,  they  should  acquit  the  prisoner  ;  but  if  they  both  went  to 
the  water  for  the  purpose  of  drowning  themselves,  each  encouraging 
the  other  in  the  commission  of  a  felonious  act,  the  survivor  was  guilty 
of  murder.  He  also  told  the  jury,  that  though  the  indictment 
charged  the  prisoner  with  throwing  the  deceased  into  the  water,  yet, 
if  he  were  present  at  the  time  that  she  threw  herself  in,  and  consented 
to  her  doing  it,  the  act  of  throwing  was  to  be  considered  as  the  act  of 
both,  and  so  the  case  was  reached  by  the  indictment.  The  jury 
stated  their  opinion  to  be,  that  both  the  prisoner  and  the  deceased 
went  to  the  water  for  the  purpose  of  drowning  themselves,  and  the 
prisoner  was  convicted.  On  a  reference  to  the  judges,  they  were 
clear,  that  if  the  deceased  threw  herself  into  the  water  by  the  en- 
couragement of  the  prisoner,  and  because  she  thought  he  had  set  her 
the  example  in  pursuance  of  the  previous  agreement,  he  was  prin- 
cipal in  the  second  degree,  and  guilty  of  murder ;  but  as  it  was 
doubtful  whether  the  deceased  did  not  fall  in  by  accident,  it  was  not 
murder  in  either,  and  the  prisoner  was  recommended  for  a  pardon. 
R.  V.  Dyson,  Russ.  &  Ry.  523.  The  prisoner  was  charged  with 
murder  by  giving  and  administering  laudanum  to  one  Emma  Crips, 
which  she  swallowed,  and  by  reason  thereof  died.  It  appeared  from 
the  prisoner's  statement,  and  from  the  other  evidence  in  the  case, 
that  he  and  the  deceased,  who  had  been  living  together  as  man  and 
wife,  being  in  great  distress,  agreed  to  poison  themselves,  and 
that  they  both  took  laudanum.  The  woman  was  found  dead  next 
morning,  the  prisoner  having  previously  gone  out.  Patteson,  J., 
» Commonwealth  v.  Brown,  13  Mass.  356,  3  Wheeler's  C.  0.  226.    S. 


MURDER.  1013 

held,  on  the  anthoritv  of  R.  v.  Dyson,  supra,  and  of  an  older  case 
which  he  cited,  that  if  two  persons  mutually  agree  to  commit  suicide 
together,  and  the  means  employed  to  produce  death  only  take  effect 
on  one,  the  survivor  will,  in  point  of  law,  be  guilty  of  the  murder  of 
the  one  who  died.  The  prisoner  was  convicted.  R.  v.  Alison,  8  C. 
&R.  418,  34E.  C.  L. 

If  a  woman  takes  poison  with  intent  to  procure  a  miscarriage,  and 
dies  of  it,  she  is  guilty  of  self-murder,  and  a  person  who  furnishes  her 
M'itli  poison  for  that  purpose  will,  if  absent  when  she  took  it,  be  an 
accessory  before  the  fact  only,  and  as  he  could  not  have  been  tried  as 
such  before  the  repealed  statute,  7  Geo.  4,  c.  64,  s.  9,  he  is  not  triable 
for  a  substantive  felony  under  that  act.  An  accessory  before  the  fact 
to  self-murder  was  not  triable  at  common  law,  because  the  princi- 
pal could  not  be  tried,  nor  is  he  now  triable  under  7  Geo.  4,  c. 
64,  s.  9  (repealed),  for  that  section  does  not  make  accessories  triable 
except  in  cases  in  which  they  might  have  been  tried  before.  R,  v. 
Russell,  1  Moo.  C.  C.  356 ;  R.  v.  Leddington,  9  Carr.  &  P.  79,  38 
E.  C.  L. 

But  where  the  prisoner  procured  corrosive  sublimate  for  a  woman, 
at  her  instigation  and  under  a  threat  by  her  of  self-destruction,  and 
she  took  it  with  intent  to  produce  a  miscarriage  and  died  of  it,  but 
he  neither  administered  it  to  her  nor  caused  her  to  take  it,  and  the 
facts  of  the  case  were  consistent  with  the  supposition  that  he  hoped 
and  expected  she  would  change  her  mind  and  would  not  resort  to  it, 
*it  was  held  that  whether  the  woman  was  or  was  not  felo  de  se,  r^gng 
the  man  was  not  an  accessory  before  the  fact.  R.  v.  Fretwell,  ■- 
L.  &  C.  161 ;  31  L.  J.,  M.  C.  145. 

Accessories,  "Where  a  person  is  cliarged  as  an  accessory  after  the 
fact  to  a  murder,  the  question  for  a  jury  is,  whether  such  person, 
knowing  the  offence  had  been  committed,  was  either  assisting  the  mur- 
derer to  conceal  the  death,  or  in  any  way  enabling  him  to  evade  the 
pursuit  of  justice.  R.  t?.  Greenacre,  8  C  &  P.  35,  34  E.  C.  L.  See 
R.  V.  Tyler,  8  C.  &  P.  616,  34  E.  C.  L.,  and  R.  v.  Manning,  2  C.  & 
K.  903,  47  E.  C.  L.  A  person  who  is  present  at  the  commission  of 
the  offence  cannot  be  an  accessory.  R.  v.  Brown,  14  Cox,  C.  C.  144. 
See  generally  as  to  accessories,  ante,  p.  181. 


1014  MUEDER — ATTEMPTS  TO  COMMIT. 


^809] 


♦MURDEE— ATTEMPTS  TO  COMMIT. 


Injuries  to  person  with  intent  to  murder.  Bj  the  24  &  25  Vict, 
c.  100,  s.  11,  "whosoever  shall  administer  to  or  cause  to  be  adminis- 
tered to  or  to  be  taken  by  any  person  any  poison  or  other  destructive 
thing,  or  shall  by  any  means  whatsoever  wound  or  cause  any  grievous 
bodily  harm  to  any  person  with  intent  in  any  of  the  cases  aforesaid  to 
commit  murder,  shall  be  guilty  of  felony,  and  being  convicted  thereof 
shall  be  liable,  at  the  discretion  of  the  court,  to  be  kept  in  penal  ser- 
vitude for  life,  or  for  any  term  not  less  thau  three  [now  five]  years, — 
or  to  be  imprisoned  for  any  term  not  exceeding  two  years,  with  or 
without  hard  labor,  and  with  or  without  solitary  confinement." 

Blowing  up  building  with  intent  to  murder.     See  ante,  p.  484. 

Setting  fire  to  or  casting  away  a  ship  with  intent  to  murder. 

By  s.  13,  "whosoever  shall  sot  fire  to  any  ship  or  vessel  or  any  part 
thereof,  or  any  part  of  the  tackle,  ajiparel  or  furniture  thereof,  or  any 
goods  or  chattels  being  therein,  or  shall  cast  away  or  destroy  any  ship 
or  vessel,  with  intent  in  any  of  such  cases  to  commit  murder,  shall  be 
guilty  of  felony."     The  same  punishment  as  in  s.  11. 

Attempt  to  poison,  shoot,  etc.,  with  intent  to  murder.     By  s.  14, 

"  whosoever  shall  attempt  to  administer  to  or  shall  attempt  to  can se  to 
be  administered  to  or  to  be  taken  by  any  person  any  poison  or  other 
destructive  thing,  or  shall  shoot  at  any  person,  or  shall,  by  drawing  a 
trigger  or  in  any  other  manner,  attempt  to  discharge  any  kind  of 
loaded  arms  at  any  person,  or  shall  attempt  to  drown,  suifocate,  or 
strangle  any  person,  with  intent,  in  any  of  the  cases  aforesaid,  to  com- 
mit murder,  shall,  whether  any  bodily  injury  be  effected  or  not,  be 
guilty  of  felony."     The  same  punishment  as  in  s.  11. 

By  any  other  means  attempting  to  commit  murder.  By  s.  15, 
"  whosoever  shall  by  any  moans  other  than  those  specified  in  any  of 
the  preceding  sections  of  this  act,  attempt  to  commit  murder,  shall  be 
guilty  of  felony."     The  same  punishment  as  in  s.  11. 

What  are  loaded  arms.     See  s.  19,  ante,  p.  301. 

Proof  of  intent  to  murder.  In  order  to  bring  the  case  Avithin  the 
above  sections  it  must  be  proved  that  the  prisoner  intended  by  the  act 
charged  to  cause  tlie  death  of  the  suffering  party.  This  will  a})}>oar 
either  from  the  nature  of  the  act  itself,  or  from  the  expressions  and 


MUEDER — ATTEMPTS   TO   COMMIT.  1015 

conduct  used  bv  the  prisoner.  R.  v.  Cruse,  8  C.  &  P.  541,  34  E.  C. 
L.;  2  Moo.  C'  C.  53  ;  R.  v.  Jones,  9  C.  &  P.  258,  38  E.  C.  L.^ 

It  will  be  an  oifence  within  these  sections  if  the  party  shoot  at  A. 
with  intent  to  murder  B.     R.  v.  Holt,  7  C.  &  P.  518,  32  E.  C.  L.* 

AVoundinjij  oneself  with  intent  to  commit  suicide  is  not  an  attempt 
to  commit  murder  within  the  meaning  of  this  statute,  but  remains 
*a  misdemeanor  triable  at  quarter  sessions.  R.  v.  Burgess,  r:j:Qirt 
L.  &  C.  258  ;  52  L.  J.,  M.  C.  55.  L  ^^^ 

Proof  of  the  attempt.  The  prisoner  was  indicted  under  ss.  14,  15 
of  24  &  25  Yict.  c.  100.  It  was  proved  that  he  drew  a  loaded  pistol 
from  his  pocket  for  the  purpose  of  murdering  S.,  but  that  before  he 
had  time  to  do  anything  further  in  pursuance  of  his  purpose,  the  pis- 
tol was  snatched  out  of  his  hand.  Stephen,  J.,  at  the  trial,  held  there 
was  no  evidence  to  go  to  the  jury  of  any  offence  under  s.  14,  consid- 
ering himself  bound  by  R.  v.  St.  George,  9  C.  &  P.  483,  38  E.  C.  L., 
where  it  was  held  that  the  words  "in  any  other  manner,"  in  s.  14, 
meant  in  any  other  manner,  like  drawing  a  trigger,  e.  g.,  by  actually 
striking  a  percussion -cap  with  a  hammer,  and  that  therefore  an  at- 
tempt to  discharge  a  pistol  by  merely  attempting  to  pull  a  trigger  and 
being  prevented  was  not  an  offence  w'ithin  the  section.  On  a  case 
being  reserved  as  to  whether  the  present  facts  constituted  an  offence 
within  s.  15,  the  Court  of  Crown  Cases  Reserved  held  that  they  did 
not,  for  that  s.  15  pointed  to  "  means"  other  than  those  mentioned  in 
the  earlier  sections.  R.  v.  Brown,  10  Q.  B.  D.  381  ;  52  L.  J.,  M.  C. 
49.^  The  court  further  intimated  that  they  did  not  agree  with  R.  v. 
St.  George,  9  C.  &  P.  483,  38  E.  C.  L.;  and  R.  v.  Lewis,  9  C.  &  P. 
523,  38  E.  C.  L.  See  these  cases,  ante,  p.  312,  and  post,  tit.  ''Shoot- 
ing." 

As  to  inciting  to  commit  murder,  see  R.  v.  Most,  7  Q.  B.  D.  244 ; 
50  L.  J.,  M.  C.  113,  ante,  p.  437. 

Form  of  indictment.  A  prisoner  was  indicted  under  the  repealed 
statute  7  Will.  4  &  1  Vict.  c.  85,  s.  2,  for  inflicting  an  injury  danger- 
ous to  life  with  intent  to  commit  murder.  The  indictment  stated  that 
the  prisoner  feloniously,  and  of  his  malice  aforethought,  did  assault 
C.  H.,  and  did  cause  unto  C.  H.  "  a  certain  bodily  injury  dangerous 
to  the  life  of  her  the  said  C.  H.,  by  then   and  there  feloniously  with 

^  Templeton  v.  People,  27  Mich.  501.  In  an  indictment  for  assault  with  intent  to 
commit  murder,  malice  will  be  presumed  where  the  act  is  deliberate  and  dan,i,':erous. 
Conn.  V.  People,  116  111.  458.  In  such  cases  it  is  for  the  jury  to  judge  whether 
the  weapon  is  deadly  or  not.     State  v.  Brown,  67  Iowa,  289. 

^  Or  if  the  party  unlawfully  intend  to  kill,  although  he  does  not  know  the  person 
assaulted.     Washington  v.  State,  53  Ala.  29. 

'  March  v.  State,  3  Tex.  App.  107  ;  Vincent  v.  State,  Id.  678.  Under  the  Indiana 
code,  where  one  is  charged  with  an  assault  and  l^attery  with  intent  to  commit  nuir- 
der,  but  on  the  trial  no  evidence  of  battery  is  shown,  a  conviction  of  assault  with 
intent  to  c:)mmit  murder  will  be  sustained  if  supported  by  the  evidence.  Dickinson 
V.  State,  70  Ind.  247  ;  Siebert  v.  State,  95  Ind.  471;  State  v.  Fisher,  103  Ind.  530; 
Powers  V.  State,  87  Ind.  144 ;  State  t;.  Keeling,  107  Ind.  563. 


1016  MUEDElt — ATTEMPTS  TO   COMMIT. 

his  hands  and  fists,  beating  and  striking  the  said  C  H.  in  and  upon 
the  head  and  back  of  her  the  said  C.  H.,  and  then  and  there  with  the 
left  foot  of  liim  the  said  T.  C.  feloniously  kicking  the  said  C.  H.  in 
and  upon  the  back  of  her  the  said  C.  H.,  and  then  and  there  with  his 
hands  feloniously  seizing  and  lifting  the  said  C.  H.,  and  then  and 
there  feloniously  striking  the  head  of  the  said  C.  H.  against  a  certain 
wooden  beam  of  a  certain  ceiling  there,  and  then  and  there  feloniously 
with  his  arms  and  hands  lifting  up  the  said  C.  H.,  and  with  great  force 
and  violence  casting  down,  flinging  and  throwing  the  said  C.  H.  upon 
and  against  a  certain  brick  floor,  there  with  intent,  in  so  doing,  her, 
the  said  C.  H.  then  and  there,  and  thereby  feloniously,  wilfully,  and 
of  his  malice  aforethought,  to  kill  and  murder."  On  demurrer  to  the 
indictment  on  the  ground  that  it  did  not  state  what  bodily  injury  had 
been  inflicted  ;  the  judges  held  that  the  description  of  the  means  used 
in  the  indictment  necessarily  involved  the  nature  and  situation  of  the 
bodily  injury,  and  that  the  indictment  was  therefore  good,  even  assum- 
ing that  it  was  necessary  to  state  the  nature  and  situation  of  the  injury. 
R.  V.  Cruse,  8  C.  &  P.  541,  34  E.  C.  L.;  2  Moo.  C.  C.  53.  In  Arch. 
Cr.  PI.  15th  ed.,  p.  560,  a  form  of  indictment  is  given  in  which  neither 
the  nature  or  situation  of  the  wound,  nor  the  means  of  death  are 
stated.  That  the  means  used  need  not  be  stated  has  been  decided  ; 
E,.  V.  Briggs,  1  Moo.  C  C.  318  ;  nor  is  it  customary  in  indictments 
for  wounding  with  intent  to  maim,  disfigure,  etc.,  to  state  the  nature 
or  situation  of  the  wound. 


NAVAL,  MILITAKY,   AND  OTHER  STORES.  1017 


♦OFFENCES  CONNECTED  WITH  NAVAL,  MILITARY,  AND  OTHER  [*8 11 

STORES. 

Subject  to  two  exceptions  to  be  mentioned  presently,  the  law  re- 
lating to  public  stores,  whether  army,  navy,  or  other  Government 
stores,  is  now  consolidated  by  the  Public  Stores  Act,  1875,  38  &  39 
Vict.  c.  25,  which  provides  as  follows : — 

By  sect.  2,  the  term  "  secretary  of  state  "  means  one  of  Her  Majesty's 
principal  secretaries  of  state  : 

The  term  "the  admiralty"  means  the  lord  high  admiral  of  the 
United  Kingdom,  or  the  commissioners  for  executing  the  office 
of  lord  high  admiral : 

The  term  "  stores  "  includes  all  goods  and  chattels,  and  any  single 
store  or  article. 

The  law  relating  to  public  stores  in  England,  Ireland,  and  Scotland 
(but  as  to  Ireland  and  Scotland,  see  also  post,  p.  814),  is  now  consoli- 
dated by  the  38  &  39  Vict.  c.  25.  The  various  statutes  which  for- 
merly protected  the  different  public  stores  have  at  length  been  totally 
repealed,  with  the  single  exception  of  the  reservation  of  certain  pow- 
ers of  the  Secretary  of  State  for  War  with  respect  to  prosecutions  in 
England  (30  &  31  Vict.  c.  128,  ss.  1,  2,  part  of  3  and  20.  See  2nd 
schedule  of  the  present  Act). 

By  sect.  3,  this  Act  shall  apply  to  all  stores  under  the  care,  super- 
intendence, or  control  of  a  secretary  of  state,  or  the  admiralty,  or  any 
public  department  or  office,  or  of  any  person  in  the  service  of  her 
Majesty,  and  such  stores  are  in  this  Act  referred  to  as  her  Majesty's 
stores.  The  secretary  of  state,  admiralty,  public  department,  office, 
or  person  having  the  care,  superintendence,  or  control  of  such  stores, 
are  hereinafter  in  this  Act  included  in  the  expression,  public  depart- 
ment. 

By  sect.  4,  the  marks  described  in  the  first  schedule  to  this  Act 
may  be  applied  in  or  on  stores  therein  described  in  order  to  denote  her 
Majesty's  pro])erty  in  stores  so  marked ;  and  it  shall  be  lawful  for  any 
public  department,  and  the  contractors,  officers,  and  workmen  of  such 
department,  to  appl}^  those  marks,  or  any  of  them,  in  or  on  any  such 
stores ;  and  if  any  person  without  lawful  authority  (proof  of  which 
authority  shall  lie  on  the  party  accused)  applies  any  of  those  marks  in 
or  on  any  such  stores  he  shall  be  guilty  of  a  misdemeanor,  and  shall  on 
conviction  thereof  be  liable  to  be  imprisoned  for  any  term  not  exceed- 
ing two  years,  with  or  without  hard  labor. 

By  sect.  5,  if  any  person  with  intent  to  conceal  her  Majesty's  prop- 
erty in  any  stores,  takes  out,  destroys  or  obliterates,  wholly  or  in  part, 
any  such  mark  as  aforesaid,  or  any  mark  whatsoever  denoting  the 
property  of  her  Majesty  in  any  stores,  he  shall  be  guilty  of  felony, 


1018  NAVAL,   MILITARY,    AND   OTHER   STORES. 

and  shall  on  conviction  thereof  be  liable,  in  the  discretion  of  the  court 
before  which  he  is  convicted,  to  be  kept  in  penal  servitude  for  any 
term  not  exceeding  seven  years,  or  to  be  imprisoned  for  any  term  not 
exceedin«:  two  years,  with  or  without  hard  lal)or. 
*si  91  *^^*y  ^^^^'  ^'  ^  constable  of  the  jNIctropolitan  police  force  may, 
-I  witiiin  the  limits  for  which  he  is  constable,  and  any  constable, 
if  deputed  by  a  public  department  may,  within  the  limits  for  which  he 
is  constable,  stop,  search,  and  detain  any  vessel,  boat,  or  vehicle  in  or 
on  which  tliere  is  reason  to  suspect  that  any  of  her  Majesty's  stores, 
stolen  or  unlawfully  obtained,  may  be  found,  or  any  person  reasonably 
suspected  of  having  or  conveying  in  any  manner  any  of  her  Majesty's 
stores  stolen  or  unlawfully  obtained. 

A  constable  shall  be  deemed  to  be  deputed  by  a  public  department 
within  the  meaning  of  this  section  if  he  is  deputed  by  any  writing 
signed  by  the  person  who  is  the  head  of  such  department,  or  who  is 
autliorized  to  sign  documents  on  behalf  of  such  department. 

By  sect.  7,  any  person  brought  before  a  court  of  summary  jurisdic- 
tion charged  with  conveying  or  with  having  in  his  possession  any  of 
her  Majesty's  stores,  reasonably  suspected  of  being  stolen,  is  guilty  of 
a  misdemeanor,  and  liable  to  a  penalty  or  imprisonment. 

By  sect.  8,  power  is  given  to  search  for  stores. 

By  sect.  9,  if  stores  are  found  in  the  possession  of  a  person  being 
in  her  Majesty's  service,  or  in  the  service  of  a  public  department,  or 
being  a  dealer  in  marine  stores,  or  in  old  metals,  or  a  pawnbroker,  he 
is  liable,  on  summary  conviction,  to  a  penalty. 

By  sect.  10,  for  the  purposes  of  this  act  stores  shall  be  deemed  to 
be  in  the  possession  or  keeping  of  any  person  if  he  knowingly  has 
them  in  the  actual  possession  or  keeping  of  any  other  person,  or  in 
any  house,  building,  lodging,  apartment,  field,  or  place,  open  or  in- 
closed, whether  occupied  by  himself  or  not,  and  whether  the  same 
are  so  had  for  his  own  use  or  benefit,  or  for  the  use  or  benefit  of 
another. 

By  sect.  11,  a  conviction  in  England  under  any  provision  of  this  act 
of  a  dealer  in  old  metals  shall,  for  the  purposes  of  registration  and  its 
consequences  under  the  Old  Metal  Dealers  Act,  1861,  be  equivalent  to 
a  conviction  under  that  act. 

Sect.  12  incorporates  sections  98-100,  103,  107-113, 115-121  of  the 
Larceny  Act,  1861.  ^ 

By  sect.  13,  the  provisions  of  this  act  relative  to  the  taking  out, 
destroying,  or  obliterating  of  marks,  or  to  the  having  in  possession  or 
keeping  of  her  INIajesty's  stores,  shall  not  apply  to  stores  issued  as 
regimental  necessaries,  or  otherwise  for  any  soldier,  militiaman,  or 
volunteer  ;  but  nothing  herein  shall  relieve  any  person  from  any  obli- 
gation or  liability  to  which  he  may  be  subject  under  any  other  act  in 
respect  of  any  such  stores. 

With  respect  to  summary  convictions,  see  sects.  14,  15,  and  the  in- 
terpretation clause. 

By  sect.  16,  nothing  in  this  act  shall  prevent  any  person  from 
being  indicted  under  this  act  or  otherwise  for  any  indictable  offence 


NAVAL,   MILITARY,    AND   OTHER  STORES.  1019 

made  punishable  on  summary  conviction  by  this  act,  or  prevent  any 
person  from  being  liable  under  any  other  act,  or  otherwise  to  any 
other  or  higher  penalty  or  punishment  than  is  provided  for  any 
offence  by  this  act,  so  that  no  person  be  punished  twice  for  the  same 
offence. 

By  sect.  17,  section  45  of  the  Greenwich  Hospital  Act,  1865,  shall 
be  read  and  have  effect  as  if  this  act  instead  of  the  Naval  and  Vic- 
tualling Stores  Act,  1864,  were  referred  to  in  that  section. 

By  section  18,  the  repeal  of  former  act  and  anything  in  this  act  is 
not  to  apply  to  any  offence  committed  before  the  passing  of  this  act, 
*but  this  act  is   to  ajjply  to  stores  bearing  any  such  mark  or   r^icnio 
part  of  a  mark  as  in  this  act  mentioned,  whether  applied  be-  •- 
fore  or  after  the  passing  of  this  act. 

The  schedule  of  the  above  act  retains  section  20  of  the  30  &  31 
Vict.  c.  128,  and  so  much  of  section  3  of  that  act  as  is  applicable  to 
section  20,  viz.,  the  definition  of  "Secretary  of  State  for  AYar,"  and 
the  definition  of  "Stores."  The  above  section  (s.  20)  of  the  30  &  31 
Vict.  c.  128,  enables  the  Secretary  of  State  for  War  to  prosecute  and 
defend  actions,  civil  and  criminal,  relating  to  her  Majesty's  stores. 

What  amounts  to  a  guilty  possession.  There  is  an  anonymous 
case  by  ISIr.  Justice  Foster,  which  was  decided  on  the  second  section  of 
the  9  &  10  Will.  3,  c.  41  [now  repealed],  in  which  a  widow  woman 
was  indicted  under  that  section  for  having  in  her  possession  several 
pieces  of  canvas  marked  in  the  manner  described  in  the  act.  The  de- 
fendant did  not  attempt  to  show  that  she  was  within  the  exception  of 
the  act,  as  being  a  person  employed  to  make  canvas  for  the  use  of  the 
navy  ;  nor  did  she  offer  to  produce  any  certificate  from  any  officer  of 
the  crown  touching  the  occasion  and  reason  of  such  canvas  coming 
into  her  possession  ;  but  her  defence  was  that  it  was  bought  at  public 
auction,  and  that  such  sales  frequently  took  place,  where  similar  arti- 
cles were  sold  in  large  and  small  lots ;  and  that  the  canvas  in  ques- 
tion had  been  made  up  fi)r  table-linen  and  sheeting,  and  had  been  in 
common  use  in  the  defendant's  family  for  a  considerable  time  before 
her  husband's  death,  and  upon  his  death  came  to  the  defendant,  and 
had  been  used  in  the  same  public  manner  by  her  to  the  time  of  the 
prosecution.  This  sort  of  evidence  was  strongly  opposed  by  the 
counsel  for  the  crown,  who  insisted  that,  as  the  act  allows  of  but  one 
excuse,  the  defendant,  unless  she  should  avail  herself  of  that,  could 
not  resort  to  any  other.  But  Mr.  Justice  Foster  was  of  opinion,  that 
though  the  clause  of  the  statute  which  directs  the  sale  of  these  things 
hath  not  pointed  out  any  other  way  for  indemnifying  the  buyer  than 
the  certificate ;  and  though  the  second  section  seems  to  exclude  any 
other  excuse  for  those  in  whose  custody  they  shall  be  found,  yet  still 
the  circumstances  attending  every  case  ought  to  be  taken  into  consid- 
eration, otherwise  a  law  calculated  for  wise  purposes  may  be  made  a 
handmaid  to  oppression.  Things  of  this  kind  were  frequently  ex- 
posed to  public  sale,  and  though  the  act  points  out  an  expedient  for 
the  indemnity  of  the  buyers,  yot  probably  few  buyers,  especially  where 
small  quantities  have  been  purchased,  have  used  the  caution  suggested 


1022  NUISANCE. 

Making  great  noises  in  the  night,  as  with  a  speaking-trumpet,  has 
been  held  to  be  an  indictable  offence,  if  done  to  the  disturbance  of 
the  neighborhood.  R.  v.  Smith,  1  Str.  704.  So  keeping  dogs,  which 
make  noises  in  the  night,  is  said  to  be  indictable.  2  Chitty's  Cr.  Law, 
6-17. 

*«l  n        *^*^  ^^^  ^^^^  keeping  of  hogs  in  a  town  is  not  only  a  nuisance 
-I   by  statute  2  W.  &  M.  sess.  2,  c.  8,  s.  20,  but  also  at  common 
law.     R.  V.  Wigg,  2  I.d.  Raym.  1163. 

It  is  now  settled  tliat  the  circumstance,  that  the  thing  complained 
of  furnishes,  upon  the  whole,  a  greater  convenience  to  the  public  than 
it  tiikes  away,  is  no  answer  to  an  indictment  for  a  nuisance ;  see  ante, 
p.  621.1 

What  the  legislature  declares  to  be  a  public  nuisance  is  indictable 
as  such.  R.  V.  Crawshaw,  9  W.  R.  38  ;  R.  v.  Gregory,  5  Barn.  & 
Adol.  555,  27  E.  C.  L. 

Proof  of  the  degree  of  annoyance  which  will  constitute  a  public 
nuisance.  It  is  a  matter  of  some  difficulty  to  define  the  degree  of 
annoyance  which  is  necessary  to  constitute  a  public  nuisance.  Upon 
aa  indictment  for  a  nuisance,  in  making  great  quantities  of  oifensive 
liquors  near  the  king's  highway,  it  appeared  in  evidence  that  the 
smell  was  not  only  intolerably  offensive,  but  also  noxious  and  hurtful, 
giving  many  persons  head-aches.  It  was  held,  that  it  was  not  neces- 
sary that  the  smell  should  be  unwholesome,  but  that  it  was  enough  if 
it  rendered  the  enjoyment  of  life  and  property  uncomfortable.^  R.  v. 
\yhite,  1  Burr.  333.  So  it  is  said  that  the  carrying  on  of  an  offensive 
trade  is  indictable,  where  it  is  destructive  of  the  health  of  the  neigh- 
borhood, or  renders  the  houses  untenantable  or  uncomfortable.  R.  v. 
Davey,  5  Esp.  217.  So  it  was  ruled,  by  Abbott,  C.  J.,  in  the  case  of 
an  indictment  for  carrying  on  the  trade  of  a  varnish  maker,  that  it 
was  not  necessary  that  a  public  nuisance  should  be  injurious  to  health  ; 
that  if  there  were  smells  offensive  to  the  senses,  it  was  enough,  as  the 
neighborhood  had  a  right  to  pure  and  fresh  air.^  R.  v.  Neil,  2  C.  &  P. 
485,  12  E.  C.  L. 

As  will  be  seen  from  R.  v.  Lister,  infra,  p.  818,  though  no  actual 
annoyance  have  taken  place,  yet  if  the  lives  and  property  of  the 
public  are  endangered,  as  by  the  keeping  of  large  quantities  of  in- 
flammable or  explosive  substances  in  a  crowded  neighborhood,  an 
indictment  for  a  nuisance  will  lie. 

Proof — with  regard  to  situation.  A  question  of  considerable  diffi- 
culty frequently  presents  itself,  as  to  the  legality  of  carrying  on  an 
offensive  trade  in  the  neighborhood  of  similar  establishments,  and  as 
to  the  length  of  time  legalizing  such  a  nuisan^p.     Where  the  defend- 

^  Resp.  V.  Caldwell,  1  Dall.  150;  Hart  et  al.  v.  Mayor,  etc.,  of  Albany,  9  Wend. 
571,  582.    S. 

^  Prout's  Case,  4  Eog.  Eec.  87.     S. 

'  Case  of  Lynet  et  al.,  6  Hog.  Rec.  61.    S. 


NUISANCE.  1023 

ant  set  np  the  business  of  a  melter  of  tallow  in  a  neighborhood  where 
other  manufactories  were  established,  which  emitted  disagreeable  and 
noxious  smells,  itAvas  ruled  that  he  was  not  liable  to  be  indicted  for  a 
nuisance,  unless  the  annoyance  was  much  increased  by  the  new  manu- 
factory. E,.  V.  Nevill,  Peake,  91.  And  it  has  also  been  ruled,  that  a 
person  cannot  be  indicted  for  continuing  a  noxious  trade  which  has 
been  carried  on  in  the  same  place  for  nearly  fifty  years.  R.  v.  Nevill, 
Peake,  93.  But  upon  this  case  it  has  been  observed,  that  it  seems 
hardly  reconcilable  with  the  doctrine,  that  no  length  of  time  can 
legalize  a  public  nuisance,  although  it  may  supply  an  answer  to  an 
action  by  a  private  individual.  1  Russ,  Cri.  442,  5th  ed.;  vide  post, 
p.  817.  It  should  seem,  continues  the  same  writer,  that,  in  judging, 
whether  a  thing  is  a  public  nuisance  or  not,  the  public  good  it  does 
may,  in  some  cases,  where  the  public  health  is  not  concerned,  be 
taken  into  consideration,  to  see  if  it  outweighs  the  public  annoyance. 

Upon  an  indictment  for  carrying  on  the  business  of  a  horse-boiler, 
*it  appeared  that  the  trade  had  been  carried  on  for  many  years  r*o-j  7 
before  the  defendants  came  to  the  premises  ;  but  its  extent  was  L 
much  greater  under  them.  For  the  defendants,  it  was  shown  that  the 
neighborhood  was  full  of  horse-boilers  and  other  noxious  trades,  and 
evidence  was  given  of  the  trade  being  carried  on  in  an  improved  man- 
ner. Lord  Tcnterden,  observing  that  there  was  no  doubt  that  this 
trade  was  in  its  nature  a  nuisance,  said,  that,  considering  the  manner 
in  which  the  neighborhood  had  always  been  occupied,  it  would  not  be 
a  nuisance,  unless  it  occasioned  more  inconvenience  as  it  was  carried 
on  by  the  defendants  than  it  had  done  before.  He  left  it,  therefore,  to 
the  jury  to  say  whether  there  was  any  increase  of  the  nuisance  ;  if,  in 
consequence  of  the  alleged  improvements  in  the  mode  of  conducting 
the  business,  there  was  no  increase  of  annoyance,  though  the  business 
itself  had  increased,  the  defendants  were  entitled  to  an  acquittal  ;  if 
the  annoyance  had  increased,  this  was  an  indictable  nuisance,  and  the 
defendants  mugt  be  convicted.  R.  v.  Watt,  Moo.  &  Mai.  N.  P.  C. 
281.  Where  a  paper  manufacturer  had  been  used  to  send  the  wash- 
ings of  rags  into  the  plaintiff's  water,  but  found  out  a  new  Avay  of 
making  paper  and  discharged  the  refuse  of  a  certain  fibrous  plant  into 
the  water,  it  was  held  that  he  could  do  so,  provided  he  did  not  increase 
the  pollution.  Baxendale  v.  McMurray,  L.  R.,  2  Ch.  790  ;  see  also 
Ball  V.  Ray,  L.  R*,  8  Ch.  467. 

If  a  noxious  trade  is  already  established  in  a  place,  remote  from 
habitations  and  public  roads,  and  persons  afterwards  come  and  build 
houses  within  the  reach  of  its  noxious  effects ;  or  if  a  public  road  be 
made  so  near  it,  that  the  carrying  on  of  the  trade  become  a  nuisance 
to  the  persons  using  the  road  ;  in  those  cases,  the  party  is  entitled  to 
continue  his  trade,  because  it  was  legal  before  the  erecting  of  the  houses 
in  the  one  case,  and  the  mailing  of  the  road  in  the  other.  Per  Abbott, 
C.  J.,  R.  V.  Cross,  2  C.  &  P.  483,  12  E.  C.  L. 

Proof — with  regard  to  length  of  time.  No  length  of  time  will 
legitimate  a  nuisance ;  and  it  is  immaterial  how  long  the  practice  has 


1024  NUISANCE. 

prevailed/  Though  twenty  years'  user  may  bind  the  right  of  an  in- 
dividual, yet  the  public  have  a  right  to  demand  the  suppression  of  a 
nuisance,  though  of  long  standing.  Weld  v.  Hornby,  7  East,  199. 
Thus  upon  an  indictment  for  continuing  a  shell  fishery  across  the 
river  at  Carlisle,  though  it  appeared  that  it  had  been  established  for  a 
vast  number  of  years,  yet  Mr.  Justice  Buller  held  that  it  contimicd 
unlawful,  and  gave  judgment  that  it  should  be  abated.  Anon,  cited 
by  Lord  Ellenborough,  3  Camp.  227.  So  it  is  a  public  nuisance  to 
place  a  wood-stack  in  the  street  of  a  town  before  a  house,  though  it  is 
the  ancient  usage  of  the  town,  and  leaves  sufficient  room  for  pas- 
sengers, for  it  is  against  law  to  prescribe  for  a  nuisance.  Fowler  v, 
Sanders,  Cro.  Jac.  446.  In  one  case,  however,  Lord  Ellenborough 
ruled,  that  length  of  time  and  acquiescence  might  excuse  what  might 
otherwise  be  a  common  nuisance.  Upon  an  indictment  for  obstruct- 
ing a  highway  by  depositing  bags  of  clothes  there,  it  appeared  that 
the  place  had  been  used  as  a  market  for  the  sale  of  clothes  for  above 
twenty  years,  and  that  the  defendant  put  the  bags  there  for  the  pur- 
pose of  sale.  Under  these  circumstances.  Lord  Ellenborough  said, 
that  after  twenty  years'  acquiescence,  and  it  appearing  to  all  the 
world  that  there  was  a  market  or  fair  kept  at  the  place,  he  could 
not  hold  a  man  to  be  criminal  who  came  there  under  a  belief  that- 
^it  was  such  a  fair  or  market  legally  instituted.     R.  v.  Smith, 


*818] 


4Esp.  111. 


Proof  of  particular  nuisances — highways.  See  supra,  tit.  "  High- 
ways," 

Proof  of  particular  nuisances — particular  trades.  Certain  trades, 
producing  noxious  and  offensive  smells,  have  been  held  to  be  nuisances, 
when  carried  on  in  a  populous  neighborhood,  as. making  candles  in  a 
town  by  boiling  stinking  stuflp,  which  annoys  the  whole  neighborhood 
with  stenches.  R.  v.  Tohayle,  cited  Cro.  Car.  510  ;  but  see  2  Roll. 
Ab.  139  ;  Hawk,  P,  C,  b,  1,  e.  75,  s,  10.  And  it  seems  that  a  brew- 
house  erected  in  such  an  inconvenient  place  that  the  business  cannot  be 
carried  on  without  greatly  incommoding  the  neighborhood,  may  be 
indicted  as  a  common  nuisance  ;  and  so  in  the  case  of  a  glasshouse  or 
swineyard.  Hawk,  P.  C.  b.  1,  c.  75,  s.  10  ;  R.  v.  Wigg,  2  Ld.  Raym. 
1163.  So  a  manufactory  for  making  spirit  of  sulphur,  vitriol,  and 
aquafortis,  has  been  held  indictable.  R.  v.  White,  1  Burr.  333.  So 
a  tannery  where  skins  are  steeped  in  water,  by  which  the  neighboring 
air  is  corrupted.^  R.  v.  Pappineau,  2  Str.  686.  See  St.  Helen's  Co.  v. 
Tipping,  35  L.  J.,  Q.  B.,  H.  of  L,  66. 

^  Mills  V.  Hall,  9  Wend.  315 ;  Commonwealth  v.  Alburger,  1  Whart.  469.    S. 

*  Any  trade  or  business  carried  on  in  a  populous  neighborhood  or  near  a  public 
road,  which  produces  noxious  or  offensive  smells,  to  the  annoyance  of  tlie  public, 
is  indictable  as  a  common  nuisance,  even  though  the  smells  shotikl  not  be  injuri- 
otis  to  health,  but  only  ofTensive  to  the  senses.  >State  v.  Wetherall,  5  Harring.  437. 
Carrying  on  <an  offensive  trade  for  twenty  years  in  a  place  remote  from  buildings 
and  public  roads,  does  not  entitle  the  owner  to  continue  it  in  the  same  place  after 
houses  have  been  built  and   roads  laid  out  in  the  neighborhood  to  the  occupants 


NUISANCE.  1025 

A  very  Important  question  relating  to  indictable  nuisances  was  fully 
discussed  in  R.  v.  Lister,  Dears.  &  B.  C.  C.  209  ;  26  L.  J.,  M.  C.  196. 
There  the  defendants  were  indicted  for  a  public  nuisance  in  keeping 
and  storing  large  quantities  of  wood  naphtha  and  rectified  spirits  of 
wine  in  a  warehouse  in  the  city  of  London.  It  appeared  that  the 
quantities  so  stored  were  from  4,000  to  5,000  gallons  of  naphtha,  and 
from  40,000  to  50,000  gallons  of  spirits  of  wine.  The  operation  of 
mixing  the  two  together  was  carried  on  upon  the  premises.  The 
naphtha  was  kept  in  the  Avarehouse  in  carboys,  holding  twelve  gallons 
each,  and  carefully  stocked  till  required  for  the  purpose  of  being 
mixed.  It  is  very  inflammable,  more  so  than  spirits,  or  even  than 
gunpowder  itself,  passing  into  vapor  at  a  heat  of  140°  Fahr.;  and,  if 
inflamed,  water  would  not  extinguish  it,  except  in  enormous  propor- 
tions relatively  to  the  quantity  of  inflamed  naphtha.  There  was  no 
dispute  that  a  fire  arising,  and  communicating  with  these  premises 
and  the  naphtha  there  kept,  could  not  be  quenched,  and  that  the 
consequences  to  the  neighborhood  would  be  very  disastrous ;  but  it 
was  proved  that  it  was  the  practice  never  to  allow  any  light  of  any 
kind  to  be  taken  into  the  Avarehouse,  and  that  unless  it  were  ignited, 
this  quantity  of  naphtha  and  spirits  would  produce  no  danger.  The 
case  was  twice  argued,  and  ultimately  the  judges  all  agreed,  that  as 
from  the  nature  and  quantity  of  the  substance,  a  real  danger  to  the 
lives  and  property  of  the  public  was  created,  the  defendants  had  com- 
mitted an  indictable  offence ;  and  that  the  circumstances,  as  above 
stated,  warranted  the  jury  in  finding  them  guilty. 

In  this  case  several  decisions  were  referred  to,  in  which  it  had 
been  held  that  manufacturing  or  keeping  large  quantities  of  gun- 
powder in  towns,  or  closely-inhabited  places,  was  an  indictable 
offence  at  common  law.  See  R.  v.  Williams,  1  Russ.  Cri.  421,  5th 
ed.;  R.  V.  Taylor,  2  Str.  1167  ;  Crowder  v.  Tinkler,  19  Ves.  617  ;  and 
these  cases  are  confirmed  by  the  abov^e  decision.  The  manufacturing 
and  keeping  of  gunpowder  and  other  explosive  substances  are  now 
*regulated  by  the  Explosive  Substances  Act,  1875,  38  &  39  r^qin 
Vict.  c.  17,  and  the  Explosive  Substances  Act,  1883,  46  Vict.  ^ 
c.  3. 

See  further  as  to  explosive  substances,  ante,  tit.  "  Explosives." 

Proof  of  particular  nuisances — corrupting  the  waters  of  public 
rivers.  In  R.  v.  Medley,  6  C.  &  P.  292,  25  E.  C.  L.,  the  chairman, 
deputy-chairman,  superintendent,  and  engineer  of  the  Equitable  Gas 
Company  were  found  guilty  upon  an  indictment  for  conveying  the  ref- 
use of  gas  into  the  Thames,  whereby  the  fish  were  destroyed,  and  the 
water  was  rendered  unfit  for  drink,  etc.   Lord  Denman,  C.  J.,  told  the 

of  and  travellers  upon  which  it  is  a  nuisance.     Commonwealth  v.  Upton,  6  Gray, 
473.    S. 

To  render  a  business  liable  to  be  abated  as  a  nuisance  it  must  be  offensive,  unhealth- 
ful,  etc.,  to  persons  of  ordinary  nature  and  condition ;  that  it  is  offensive  to  delicate 
and  sensitive  organizations  is  not  enough.  Rufl'  v.  Phillips,  50  Ga.  130 ;  Meigs  v. 
Lister,  25  N.  J.  Eq.  489. 

65 


1026  NUISANCE. 

jury,  tliat  the  quGstion  for  them  was,  whether  the  special   acts  of  the 
company  amounted  to  a  nuisance.^ 

Proof  of  particular  nuisances — railways — steam-engines,  etc. 
Where  an  Act  of  parliament  gave  a  company  power  to  make  a  railway 
and  another  Act  gave  them  unqualified  power  to  use  locomotive  steam- 
engines  on  the  railway,  and  the  railway  was  constructed  in  some  parts 
within  five  yards  of  a  highway  ;  upon  an  indictment  for  a  nuisance, 
stating  that  horses  passing  along  the  highway  were  terrified  by  the 
engines,  it  was  held  that  this  interference  with  the  rights  of  the  public 
must  be  presumed  to  have  been  sanctioned  by  the  legislature,  and  that 
the  benefit  derived  by  the  public  from  the  railway  showed  that  there 
was  nothing  unreasonable  in  the  Act  of  parliament  giving  the  powers. 
E.  V.  Pease,  4  B.  &  Ad.  30,  24  E.  C.  L.  See  post,  title  "  Railways." 
But  where  the  defendant,  the  proprietor  of  a  colliery,  without  the  au- 
thority of  an  Act  of  parliament,  made  a  railway  from  his  colliery  to  a 
sea-port  town,  upon  the  turnpike-way,  which  it  narrowed  in  some 
places,  so  that  there  was  not  room  for  two  carriages  to  pass,  although 
he  gave  the  public  (paying  a  toll)  the  use  of  the  railway,  yet  it  was 
held  that  the  facility  thereby  aflforded  to  traffic  was  not  such  a  conve- 
nience as  justified  the  obstruction  of  the  highway.  R.  v.  Morris,  1  B. 
&  Ad.  441,  20  E.  C.  L. 

The  proceedings  in  indictments  for  nuisances  by  steam-engines  are 
regulated  by  the  1  &  2  Geo.  4,  c.  41  (U.  K.).  By  s.  1,  the  court  by 
which  judgment  ought  to  be  pronounced  in  case  of  a  conviction  upon 
any  such  indictment  (viz,  for  a  nuisance  arising  from  the  improper 
construction  or  negligent  use  of  furnaces  employed  in  the  working 
of  steam-engines),  is  authorized  to  award  such  costs  as  shall  be 
deemed  proper  and  reasonable  to  the  prosecutor,  such  award  to  be 
made  before  or  at  the  time  of  pronouncing  final  judgment.  And  by 
the  second  section,  if  it  shall  appear  to  the  court  by  which  judgment 
ought  to  be  pronounced  that  the  grievance  may  be  remedied  by 
altering  the  construction  of  the  furnace,  it  shall  be  lawful,  without 
the  consent  of  the  prosecutor,  to  make  such  order  touching  the  premises 
as  shall  by  the  court  be  thought  expedient  for  preventing  the  nuisance 
in  future,  before  passing  final  sentence.  By  the  third  section  the 
Act  is  not  to  extend  to  furnaces  erected  for  the  purposes  of  working 
mines. 

Proof  of  particular  nuisances — acts  tending  to  produce  public 

disorder — acts  of  public  indecency.  Common  stages  for  rope-dancers, 

and  common  gaming-houses,  are  nuisances  in  the  eye  of  the  law,  not 

*S9m   *^"^^'  because  they  are  great  temptations  to  idleness,  but  because 

^  they  are  *apt  to  draw  together  great  numbers  of  disorderly 

'  ^Vhere  works  were  erected  on  the  waters  of  a  stream  in  one  county,  which  cor- 
mpted  the  waters  of  the  same  stream  in  another  county :  held  that  the  indictment 
couM  be  prosecuted  in  the  former  county.  Commonwealth  v.  Lyons,  1  Clark, 
497.    S. 


NUISANCE.  1027 

persons,  to  the  inconvenience  of  the  neighborhood.^  Hawk.  P.  C.  b.  1, 
c.  75,  s,  6.  So  collecting  together  a  number  of  persons  in  a  field  for 
the  purpose  of  pigeon-shooting,  to  the  disturbance  of  the  neighbor- 
hood, is  a  public  nuisance.  R.  v.  Moore,  3  B.  &  Ad.  184,  23  E.  C.  L.; 
see  this  case  more  fully,  post,  p.  825. 

It  is  upon  this  same  principle  that  many  of  the  acts  after  mentioned 
have  been  held  to  be  public  nuisances. 

What  outrages  pul)lic  decency,  and  is  injurious  to  public  morals,  is 
indictable  as  a  misdemeanor.  Hawk.  P.  C.  b.  1,  c.  75,  s.  4 ;  1  Russ. 
Cri.  434,  5th  ed.^  Thus  bathing  in  the  open  sea,  where  the  party  can 
be  distinctly  seen  from  the  neighboring  houses,  is  an  indictable  offence, 
although  the  houses  had  been  recently  erected,  and,  until  their  erection, 
it  had  been  usual  for  men  to  bathe  in  great  numbers  at  the  place  in 
question :  ''  for,"  said  M'Donald,  C.  B.,  "  whatever  place  becomes 
the  habitation  of  civilized  men,  there  the  laws  of  decency  must  be 
enforced."  R.  2^.  Crunden,  2  Campb.  89;  R.  v.  Sedly,  Sid.  168. 
Bathing  so  near  a  public  footway  frequented  by  females  that  exposure 
must  occur  is  a  nuisance,  and  it  is  no  defence  that  there  has  been  an 
usage  to  bathe  at  that  place  time  out  of  mind.  R.  v.  Reed,  12  Cox, 
C.  C.  1.     Per  Cockburn,  C.  J. 

Exposing  the  dead  body  of  a  child  in  a  public  highway  is  a  nui- 
sance.    R.  V.  Clark,  15  Cox,  C.  C.  171. 

It  would  seem  that  cremation,  if  so  conducted  as  not  to  shock  pub- 
lic decency,  would  not  be  an  indictable  nuisance  at  common  law.  See 
ante,  "Dead  Bodies." 

An  indecent  exposure  in  a  place  of  public  resort,  if  actually  seen 
only  by  one  person,  no  other  person  being  in  a  position  to  see  it,  is 
not  a  common  nuisance.  R.  v.  Webb,  1  Den.  C.  C.  R.  338;  s.  c. 
18  L.  J.,  M.  C.  39  ;  and  see  R.  v.  Farrell,  9  Cox,  C.  C.  446.  But 
this  view  of  the  law  has  since  been  doubted  in  the  case  of  R.  v.  Elli- 
ott, L.  &  C.  103.     The  prisoner  was  indicted  for  an  indecent  exposure 

^  A  ten-pin  alley,  kept  for  gain  in  a  populous  village  and  open  to  public  use,  is  not 
per  se  a  disorderly  house  or  public  nuisance,  nor  does  the  fact  of  its  being  kept  in 
connection  with  a  drinking  saloon  make  it  such.  State  v.  Hall,  3  Vr.  158.  A  bowling 
saloon  kept  for  gnin  or  hire  is  a  public  nuisance  at  common  law,  though  gambling  be 
expressly  prohibited.  Tanner  v.  Trustees  of  Albion,  5  Hill,  121 ;  Commonwealth  v. 
Goding,  3  Mete.  130.  Whatever  act  openly  outrages  decency  and  is  injurious  to  pub- 
lic morals,  is  a  misdemeanor  at  common  law,  and  is  indictable  as  such.  State  v.  Rose, 
32  Mo.  560.  A  person  who  collects  together  a  large  crowd  in  the  public  highway  and 
streets  of  a  city,  by  means  of  "  violent  and  indecent  language  addressed  to  persons 
passing  along  the  highway,"  thereby  obstructing  the  free  passage  of  the  street,  is  in- 
dictable for  committing  a  common  nuisance.  Barker  v.  Commonwealth,  19  Pa.  St. 
412.  Profane  swearing  in  public  is  indictable  as  a  common  nuisance.  State  ».  Gra- 
ham, 3  Sneed,  134.  As  to  indecent  exposure,  see  Commoriwealth  v.  Haynes,  2  Gray, 
72.  The  public  utterance,  in  a  large  assembly  of  males  and  females,  of  grossly  obscene 
language,  is  a  misdemeanor,  indictable  at  common  law.  State  v.  Appling,  25  Miss. 
315.  See  McJunkins  v.  State,  10  Ind.  140 ;  State  v.  Gardner,  28  Mo.  90 ;  Knowles  v. 
State,  3  Day.  103.     S. 

Brady  t>.  State,  48  Ga.  311 ;  Moffit  v.  State,  43  Tex.  346  ;  State  v.  Griffin,  Id.  538 ; 
Ardery  v.  State,  56  Ind.  328. 

*  In  some  States  statutes  have  been  passed  punishing  intoxication  and  the  sale  of 
liquors  to  intoxicated  persons.  In  re  Pierce,  46  Vt.  374 ;  State  v.  Hoffman,  46  Vt. 
176. 


1028  NUISANCE. 

in  an  omnibus,  several  passengers  being  tlierein.  The  indictment 
contained  two  connts ;  one  laid  tlie  oii'enee  as  having  been  committed 
in  an  omnibns,  and  the  other  in  the  public  highway.  It  was  held 
that  an  omnibus  was  sufficiently  a  public  place  to  sustain  the  indict- 
ment. R.  V.  Hohnes,  1  Dears.  C.  C.  R.  207  ;  22  L.  J.,  M.  C.  122  ; 
and  semble  that  a  railway  carriage  would  under  similar  circumstances 
be  also  a  public  place.  Langrish  v.  Archer,  52  L.  J.,  M.  C.  47.^  So 
also,  where  a  man  indecently  exposed  his  person  upon  the  roof  of 
a  house,  where  his  act  could  not  be  seen  by  persons  passing  along 
the  highway,  but  where  it  was  seen  by  seven  persons  from  the  back 
windows  of  another  house,  it  was  held  that  he  was  rightly  convicted 
of  exposing  his  person  in  a  public  place.  R.  v.  Thallman,  L.  &  C. 
336  ;  33  L.  J.,  M.  C.  53.  A  urinal  open  to  the  public,  situate  in 
Hyde  Park,  near  to  a  lodge,  the  window  of  which,  on  a  first  floor, 
commands  a  view  of  the  urinal  at  a  distance  of  14  feet,  the  urinal 
being  approached  by  a  gate  opening  from  a  public  footpath,  is  a  public 
place.  R.  V.  Harris,  L.  R.  1  C.  C.  R.  282  ;  overruling  R.  v.  Orchard, 
3  Cox,  C.  C.  248. 

Exhibiting  an  offensive  and  disgusting  picture,  although  there  be 
nothing  immoral  in  it,  and  although  the  motive  of  the  exhibitor  may 
be  innocent  and  even  laudable,  is  a  nuisance.  R.  v.  Grey,  4  F.  &  F. 
73.  So  keeping  a  booth  for  the  purpose  of  showing  an  indecent  ex- 
hibition to  which  people  were  invited  to  enter  on  payment  and 
*S91 1  *witness  an  indecent  exhibition,  renders  a  person  indictable  at 
1  common  law  for  indecency  in  a  public  place.  R.  v,  Saunders, 
1  Q.  B.  D.  15 ;  45  L.  J.,  M.  C.  11. 

As  to  obscene  prints,  see  14  &  15  Vict.  c.  100,  s.  29,  and  20  &  21 
Vict.  c.  83 ;  and  as  to  obscene  books,  see  R.  v.  Hickling,  37  L.  J., 
M.  C.  89. 

Proof  of  particular  nuisance — disorderly  inns.  Every  one,  at 
common  law,  is  entitled  to  keep  a  public  inn,  but  if  he  sells  ale,  wine, 
or  spirits,  he  comes  within  the  licensing  statutes  ;  and  may  be  indicted 
and  fined,  as  guilty  of  a  public  nuisance,  if  he  usually  harbor  thieves, 
or  suffer  frequent  disorders  in  his  house,  or  take  exorbitant  prices, 
or  refuse  to  receive  a  traveller  as  a  guest  into  his  house,  or  to  find  him 
in  victuals,  upon  the  tender  of  a  reasonable  price.  Hawk.  P.  C.  b.  1, 
c.  78,  ss.  1,  2 ;  R.  v.  Iven,  7  C.  &  P.  213,  32  E.  C.  L. ;  Hawthorn 
V.  Hammond,  1  C.  &  K.  404,  47  E.  C.  L. 

Refusing  to  supply  necessary  food  and  lodging  to  a  bond  fide  trav- 
eller is  an  indictable  offence  (1  Russell  on  Cri.  5th  ed.  426),  but  a  re- 
freshment bar  though  attached  to  the  inn  is  not  an  inn  within  the 
common  law  rule,  and  therefore  no  indictment  will  lie  for  refusing  to 
supply  refreshments  from  such  place.  R.  v.  Rhymer,  L.  R.  2  Q.  B. 
D.  136  ;  46  L.  J.,  M.  C.  108. 

By  the  22  &  23  Vict.  c.  17  (Vexatious  Indictments  Act),  supra,  p. 
192,  no  indictment  is  to  be  preferred  for  keeping  a  gambling-house, 

'  A  public  highway  was  held  not  to  be  such  a  public  place  as  the  statute  contem- 
plated, where  the  statute  said,  "  any  public  place."     Williams  v.  State,  64  Ind.  553. 


NUISANCE.  1029 

or  a  disorderly-house,  Avitliout  previous  authorization.     See  also  30  & 
31  Viet.  c.  35,  s.  1,  in  Appendix. 

The  quarter  sessions  for  a  borough  have  jurisdiction  to  try  an  in- 
dictment for  kee})ing  a  disorderly  house,  and  the  provisions  of  the  25 
Geo.  2,  c.  86,  s.  5,  do  not  confine  it  to  the  assizes  or  the  quarter  sessions 
for  the  county.     11.  v.  Charles,  10  W.  R.  62 ;  31  L.  J.,  M.  C.  69. 

Proof  of  particular  nuisances — gaming-houses.  In  R.  v.  Dixon, 
10  Mod.  336,  it  was  held  that  the  keeping  of  a  gaming-house  was  an 
offence  at  common  law  as  a  nuisance.  The  keeping  a  common  gaming- 
house is  an  indictable  offence,  for  it  not  oidy  is  an  encouragement  to 
idleness,  cheating,  and  other  corrupt  practices,  but  it  tends  to  produce 
public  disorder  by  congregating  numbers  of  people.  Hawk.  P.  C.  b. 
1,  c.  75,  s.  6  ;  1  Russ.  Cri.  428,  5th  ed.  A  feme  covert  may  be  con- 
victed of  this  offence.  Hawk.  P.  C.  b.  1,  c.  92,  s.  30.  Keeping  a 
common  gaming-house,  and  for  lucre  and  hire  unlawfully  causing  and 
procuring  divers  ill-disposed  persons  to  frequent  and  come  to  play 
together  a  certain  game  called  rouge  et  noir,  and  permitting  the  said 
idle  and  evil-disposed  persons  to  remain,  playing  at  the  said  game,  for 
divers  large  and  excessive  sums  of  money,  is  a  sufficient  statement  of 
an  offence  indictable  at  common  law ;  R.  v.  Rogier,  1  B.  &  C.  272, 
8  E.  C  L.;  and  per  Holroyd,  J.,  it  would  have  been  sufficient  merely 
to  have  alleged  that  the  defendant  kept  a  common  gaming-house.  Id. 
So  in  R.  V.  Mason,  1  Leach,  548,  Grose,  J.,  seemed  to  be  of  opinion 
that  the  keeping  of  a  common  gaming-house  might  be  described  gen- 
erally. See  also  R.  y.'^Taylor,  3  B.  &  C.  502,  10  E.  C.  L.  It  seems 
that  the  keeping  of  a  cockpit  is  not  only  an  indictable  offence  at  com- 
mon law,  but  such  places  are  considered  gaming-houses  within  the 
statute  33  Hen.  8,  c.  9.     Hawk.  P.  C.  b.  1,  c.  92,  s.  92. 

*The  8  &  9  Vict.  c.  109,  s.  2,  enacts  that  "  in  default  of  r*o9o 
other  evidence  proving  any  house  or  place  to  be  a  common  L 
gaming-house  it  shall  be  sufficient,  in  support  of  the  allegation  in  any 
indictment  or  information  that  any  house  or  place  is  a  common  gam- 
ing-house to  prove  that  such  house  or  place  is  kept  or  used  for  play- 
ing therein  at  any  unlawful  game,  and  that  a  bank  is  kept  there  by  one 
or  more  of  the  players  exclusively  of  the  others,  or  that  the  chances  of 
any  game  played  therein  are  not  alike  favorable  to  all  the  players,  in- 
cluding among  the  players  the  banker  or  other  person  by  whom  the 
game  is  managed,  or  against  whom  the  other  players  stake,  play,  or 
bet;  and  every  such  house  or  place  shall  be  deemed  a  common  gam- 
ing-house, such  as  is  contrary  to  law  and  forbidden  to  be  kept  by  the 
said  Act  of  King  Henry  the  Eighth,  and  by  all  other  Acts  contain- 
ing any  provision  against  unlawful  games  in  gaming-houses."  The 
Act  also  contains  provisions  for  searching  gaming-houses  and  for  the 
summary  conviction  of  the  owners.  By  the  16  &  17  Vict.  c.  119, 
no  house,  room,  or  place  is  to  be  kept  for  the  purpose  of  betting  or 
receiving  money  for  bets,  and  such  places  are  made  gaming-houses 
within  the  8  &  9  Vict.  c.  109;  amended  by  37  &  38  Vict.  c.  15. 
Bows  V.  Fenwick,  L.  R.  9  C.  P.  339 ;  43  L.  J.,  M.  C.  107  ;  East- 


1030  NUISANCE. 

wood  V.  Miller,  L.  E.  9  Q.  B.  440;  43  L.  J.,  M.  C.  139  ;  Haigh  v. 
Town  Council  of  Sheffield,  L.  R.  10  Q.  B.  102  ;  44  L.  J.,  M.  0.  17, 
cited  ante,  p.  608. 

By  the  17  &  18  Vict.  c.  38,  penalties  are  imposed  upon  persons  ob- 
structing the  entry  of  constables  into  suspected  houses  ;  and  by  sect.  2 
it  is  provided,  that  "  where  any  constable  or  officer  authorized  as 
aforesaid  to  enter  any  house,  room,  or  place,  is  wilfully  prevented 
from  or  obstructed  or  delayed  in  entering  the  same  or  any  part 
thereof,  or  where  any  external  or  internal  door  of  or  means  of  access 
to  any  such  house,  room,  or  place  so  authorized  to  be  entered  shall  be 
found  to  be  fitted  or  provided  with  any  bolt,  bar,  chain,  or  any  means 
or  contrivance  for  the  purpose  of  preventing,  delaying,  or  obstructing 
the  entry  into  the  same  or  any  part  thereof  of  any  constable,  or  offi- 
cer authorized  as  aforesaid,  or  for  giving  an  alarm  in  case  of  such 
entry,  or  if  any  such  house,  room,  or  place  is  found  fitted  or  pro- 
vided with  any  means  or  contrivance  for  concealing,  removing,  or 
destroying  any  instrument  of  gaming,  it  shall  be  evidence  until  the 
contrary  be  made  to  appear  that  such  room  or  place  is  used  as  a 
common  gaming-house  within  the  meaning  of  this  Act,  and  of  the 
former  Acts  relating  to  gaming,  and  that  the  persons  found  therein 
were  unlawfully  playing  therein." 

The  proceedings  against  persons  keeping  gaming-houses,  bawdy- 
houses,  or  disorderly  houses,  are  facilitated  by  the  statute  25  Geo. 
2,  c.  36,  by  the  eighth  section  of  Avhich  it  is  enacted,  that  any  person 
who  shall  appear,  act,  or  behave  as  the  master  or  mistress,  or  as  the 
person  having  the  care,  government,  or  management  of  any  bawdy- 
house,  gaming-house,  or  other  disorderly  house,  shall  be  deemed  and 
taken  to  be  the  keeper  thereof,  and  shall  be  liable  to  be  prosecuted 
and  punished  as  such,  notwithstanding  he  or  she  shall  not  in  fact 
be  the  real  owner  or  keeper  thereof.  By  section  10,  no  indictment 
shall  be  removed  by  certiorari.  This  clause  does  not  prevent  the 
crown  from  removing  the  indictment.  R..  v.  Davies,  5  T.  R.  626. 
See  also  ante,  p.  607. 

After  an  indictment  has  been  preferred  by  a  private  prosecutor, 
the  court  will  allow  any  other  person  to  go  on  with  it,  even  against 
the  consent  of  the  prosecutor.  R.  v.  Wood,  3  B.  &  Ad.  657,  23 
E.  C.  L. 

*«9'^1  *"^^  indictment  for  keeping  a  disorderly  house  can  be  re- 
-•  moved  by  certiorari,  whether  the  indictment  be  at  the  prosecu- 
tion of  the  constable  under  25  Geo.  2,  c.  36,  or  at  the  instance  of  a 
private  individual.  R.  v.  Sanders,  9  Q.  B.  235,  58  E.  C.  L.;  15  L. 
J.,  M.  C.  158. 

By  the  10  &  11  Will.  3,  c.  17,  s.  1,  and  the  42  Geo.  3,  c.  119,  s.  1, 
all  lotteries  are  declared  to  be  a  public  nuisance.  See  R.  v.  Craw- 
shaw,  supra,  p.  816.  By  the  9  &  10  Vict.  c.  48,  certain  associations 
for  the  distribution  of  works  of  art  are  legalized. 

By  42  &  43  Vict.  c.  18,  unlicensed  horse  races  within  the  metro- 
politan area  are  nuisances. 

See  generally  the  22  &  23  Vict.  c.  17,  supra,  p.  192. 


NUISANCE.  1031 

Proof  of  particular  nuisan  ces — bawdy-houses.  The  keeping  of  a 
bawdy-house  is  a  common  nuisance,  both  on  the  ground  oi'  its  cor- 
rupting public  morals,  and  of  its  endangering  the  public  peace,  by 
drawing  together  dissohite  persons/  Hawk.  P.  C.  b.  1,  c.  74,  s.  1 ;  5 
Bac.  Ab.  Nuisances  (A) ;  1  lluss.  Cri.  427,  5th  ed.  A  feme  covn-t  is 
punishable  for  this  offence  as  if  she  were  sole.     Id.     R.  v.  Williams, 

1  Salk.  383.  And  a  lodger,  who  keeps  only  a  single  room  for  the  use 
of  bawdry,  is  indictable  for  keeping  a  bawdy-house  ;  see  R.  v.  Pierson, 

2  Ld.  Raym.  1197;  but  the  bare  solicitation  of  chastity  is  not 
indictable.  Hawk.  P.  C.  b.  1,  c.  74,  s.  1.  Though  the  charge  in  the  in- 
dictment is  general,  yet  evidence  may  be  given  of  particular  facts, 
and  of  the  particular  time  of  these  facts,  see  Clarke  v.  Periam, 
2  Atk.  339,  it  being,  in  fact,  a  cumulative  offence.  It  is  not  neces- 
sary to  prov^e  who  frequents  the  house,  which  in  many  cases  it  might 
be  impossible  to  do,  but  if  unknown  persons  are  proved  to  have  been 
there,  conducting  tliemselves  in  a  disorderly  manner,  it  will  maintain 
the  indictment.  J.  Anson  v.  Stuart,  1  T.  R.  754  ;  1  Russ.  by  Greav. 
326.^  It  is  not  necessary  that  the  indecency  or  disorderly  conduct 
should  be  perceptible  from  the  exterior  of  the  house.  R.  v.  Rice,  L. 
R.,  1  C.  C.  R.  21 ;  35  L.  J.,  M.  0.  93.     The  proceedings  in  prose- 

^  Darling  v-  Hubbell,  9  Conn.  350.  Letting  a  liouse  to  a  woman  of  ill-fame,  know- 
ing her  to  be  such,  is  an  indictable  offence  at  common  lawl  Commonwealth  v.  Har- 
rington, 3  Pick.  26  ;  see  Brooks  v.  State,  2  Yerg.  482.  Every  act  done  in  furtlierance 
of  a  misdemeanor  is  not  the  subject  of  an  indictment ;  but  to  constitute  it  such,  it 
must  tend  directly  and  immediately,  if  not  necessarily,  to  the  conmiission  of  tlie  mis- 
demeanor. Hence,  the  renting  of  a  house  to  a  woman  of  ill-fame,  with  the  intent  that 
it  shall  be  kept  for  the  purpose  of  public  prostitution,  is  not  an  offence  punishable  by 
indictment,  tliough  it  be  so  kept  afterward.  Cowen,  J.,  dissented,  holding  that  the  lessor 
of  a  house  demised  and  kept  for  such  purposes,  might  be  indicted  as  the  keeper  of  it. 
Eockway  v.  People,  2  Hill,  658 ;  see  Commonwealth  v.  Lewis,  1  Mete.  151 ;  State  v. 
Avery,  7  Conn.  267.  As  to  disorderly  houses,  see  1  Wheel.  C.  C.  290.  May  be  proved 
by  general  reputation.  Rath  bone's  Case,  1  Kog.  Rec.  27.  But  see  Commonwealth  v. 
Stewart,  1  S.  &  R.  342.  The  keeping  of  a  disorderly  house  must  be  laid  as  a  common 
nuisance.  Hunter  v.  Commonwealth,  2  S.  &  R.  298.  A  person  who  lets  a  house  to 
another  knowing  that  he  intends  to  keep  a  bawdy-house,  is  guilty  of  an  indictable 
offence.  Commonwealth  c.  Jolmson,  4  Clark,  398.  One  who  has  the  control  of  a 
building,  and  rents  it  with  knowledge  that  it  is  to  be  used  as  a  house  of  prostitution, 
cannot  screen  himself  from  punishment  as  keeper  of  a  bawdy-house,  by  showing  that 
he  is  not  the  owner  of  the  premises,  but  merely  collects  the  rents  as  agent  for  the 
owner.  Lowenstein  v.  People,  54  Barb.  299.  It  is  not  necessary  that  a  bawdy-house 
should  be  a  dwelling.    State  v.  Powers,  36  Conn.  77.     S. 

To  sustain  the  indictment  it  is  only  necessary  to  establish  that  the  defendant  aided 
in  or  contributed  to,  directly  or  indirectly,  the  maintenance  of  the  bawdy-house. 
Clifton  V.  State,  53  Ga.  241  ;  Mahalovitch  v.  State,  54  Ga.  217.  Proof  that  "the  de- 
fendant kept  a  dance-house  frequented  by  dissolute  women,  and  that  some  of  them  had 
solicited  men  to  retire  from  the  building  for  the  purposes  of  prostitution,  warrants  a 
conviction  for  keeping  a  disorderly  house.  Commonwealth  r.  Cordoze,  119  Mass.  210; 
Barnesciotta  v.  People,  10  Hun,  (N.  Y.)  137.  See  also  O'Brien  v.  People,  28  Mich. 
213 ;  Morris  v.  State,  38  Tex.  603 ;  People  v.  Saunders,  29  Mich.  269 ;  Sylvester  v. 
State,  42  Tex.  496.  The  indictment  need  only  aver  that  the  offence  was  committed 
in  the  county  where  the  indictment  was  found.     Handy  v.  State,  63  Miss.  207. 

'  General  reputation  is  not  sufficient  evidence.  U.  S.  v.  Jourdine,  4  Cranch  C.  C. 
338 ;  Wooster  v.  State,  55  Ala.  217 ;  Toney  v.  State,  60  Ala.  97  ;  People  v.  Mauch, 
24  How.  Pr.  276  ;  Commonwealth  v.  Stewart,  1  S.  &  R.  344 ;  Smith  v.  Commonwealth, 
6  B.  Monroe,  21 ;  Hewson  v.  State,  62  Md.  231 ;  s.  c.  19  Cent.  L.  J.  230;  Handy  v. 
State,  63  Miss.  207. 


1032  NUISANCE. 

cutions  against  bawdy-houses  are  facilitated  by  the  statute  25  Geo.  2, 
c.  3G,  sitpra. 

See  tlie  22  &  23  Vict.  c.  17,  ante,  p.  192;  aud  see  30  &  31  Vict, 
c.  35,  s.  1,  in  Appendix. 

As  to  what  amounts  to  a  keeping.  If  a  house  be  let  to  weekly 
tenants,  and  be  used  by  them  as  a  bawdy-house  with  the  knowledge 
of  the  landlord,  who  nevertheless  does  not  get  any  additional  rent  by 
reason  of  the  purposes  to  which  the  house  is  ap})lied,  the  landlord  is 
not  guilty  of  keeping  a  bawdy-house,  or  of  being  accessory  thereto. 
11.  V.  Barrett,  32  L.  J.,  M.  C.  36 ;  L.  &  C.  203 ;  11.  v.  Stannard,  L. 
&  C.  349. 

Proof  of  particular  nuisances — play-houses,  etc.  Play-houses 
having  been  originally  instituted  with  the  laudable  design  of  re- 
commending virtue  to  the  imitation  of  the  people,  and  exposing 
vice  and  folly,  are  not  nuisances  in  their  own  nature,  but  may  be- 
come so  by  drawing  together  numbers  of  people,  to  the  inconvenience 
of  the  neighborhood.  Hawk.  P.  C.  b.  1,  c.  75,  s.  7  ;  see  2  B.  &  Ad. 
189,  22  E.  C.  L. 

Players,  plays,  and  play-houses  are  now  put  under  regulations  by 

the  6  &  7  Vict.  c.  68,  pursuant  to  the  2nd  sect,  of  which,  all  theatres 

*K241    *^^h'^^i  ^^^"6  ^lot  authorized  by  letters  patent  from  the  crown,  or 

-I   by  licence  from  the  lord  chamberlain,  or  the  justices  of  the 

peace,  are  unlawful. 

By  the  25  Geo.  2,  c.  36,  any  house,  room,  garden,  or  other  place 
kept  for  public  dancing,  music,  or  other  public  entertainment  of  the 
like  kind,  in  the  cities  of  London  or  Westminster,  or  within  twenty 
miles  thereof,  without  a  licence  from  the  magistrates,  shall  be  deemed 
a  disorderly  house,  and  the  keeper  is  subjected  to  a  penalty  of  100^., 
and  is  otherwise  punishable  as  the  law  directs  in  cases  of  disorderly 
houses.  A  room  used  for  public  music  or  dancing  is  within  the 
statute,  although  it  is  not  exclusively  used  for  those  purposes,  and 
although  no  money  be  taken  for  admission  ;  but  the  mere  accidental 
or  occasional  use  of  the  room,  for  either  or  both  of  these  purposes, 
will  not  be  Avithin  the  Act.  Per  Lord  Lyndhurst,  C.  B.,  Gregory  v. 
Tuffs,  6  C.  &  P.  271,  25  E.  C.  L.  Sec  also  Gregory  v.  Tavernor,  Id. 
280  ;  Marks  v.  Benjamin,  5  M.  &  W.  564  ;  R.  v.  Tucker,  2  Q.  B.  D. 
417;  46  L.  J.,  M.  C.  197;  and  cases  collected  in  Chitty's  Statutes, 
vol.  v.,  tit.  "  Public  Entertainment,"  4th  ed. 

Proof  of  particular  nuisances — dangerous  animals.  Suffering 
fierce  and  dangerous  animals,  as  a  fierce  bull-dog,  which  is  used  to 
bite  people,  to  go  at  large  is  an  indictable  offence.  4  Burn's  Justice, 
578.  But  where  the  animal  is  not  of  such  a  description  as,  in  general, 
from  its  ferocity,  to  endanger  the  persons  of  those  it  meets,  in  order 
to  maintain  an  indictment,  it  must  be  shown  that  the  owner  was 
aware  of  the  ferocity  of  that  particular  animal.     2  Ld.  Eaym.  1852. 


NUISANCE.  1033 

Proof  of  particular  nuisances — contagion,  and  unwholesome 
provisions.  It  is  an  indiotablc  ollbncc  to  expose  a  person  luivinj^  a 
coiitagiinis  disease,  as  the  siuall-j)ox,  in  public.  R.  v.  Vantundillo, 
4  M.  tV:  S.  73  ;  R.  v.  Burnett,  Id.  272.  See  also  the  3  &  4  Viet.  c.  29, 
s.  8  (now  repealed  by  30  &  31  A^'ict.  e.  84,  by  section  32  of  which 
similar  provisions  are  substituted)  which  subjects  to  })unishment, 
by  suuiniary  conviction,  persons  inoculating  or  otherwise  produci;ig 
small-pox. 

It  is  a  nuisance  for  a  common  dealer  in  j)rovisions  to  sell  unwhole- 
some food,  or  to  mix  noxious  ingredients  in  the  provisions  Avhich 
he  sells.  R.  v.  Dixon,  3  M.  &  S.  11.  Or  to  cause  to  be  publicly 
exposed  for  sale,  as  sound  and  wholesome  meat,  meat  known  not 
to  be  sound  and  wholesome  ;  R.  v.  Stevenson,  3  F.  &  F.  100  ;  or 
knowinglv  to  send  such  meat  to  market ;  R.  v.  Jarvis,  3  F.  &  F.  108 ; 
R.  V.  Cro'wley,  3  F.  &  F.  109. 

As  to  the  inspection  and  seizure  of  unwholesome  food,  see  26  &  27 
Vict.  c.  1 1 7  (repealed,  excejot  as  to  Metropolis,  by  38  &  39  Vict.  c.  55  : 
see  ss.  116-119  of  that  Act.)  By  38  &  39  Vict.  c.  63,  s.  3,  the  adul- 
teration of  food  in  certain  cases  is  made  a  misdemeanor,  punishable  by 
six  months  hard  labor. 

Proof  of  particular  nuisances — eaves-dropping,  common  scold. 
Eaves-droppers,  or  such  as  listen  under  walls  and  windows,  or  the 
eaves  of  houses,  to  hear  discourses,  and  thereupon  frame  slanderous 
and  mischievous  tales,  are  common  nuisances,  and  indictable,  and 
may  be  punished  by  fine,  and  finding  sureties  of  their  good  behavior. 
4  Bl.  Com.  167  ;  Burn's  Justice,  Eaves  Droppers ;  1  Russ.  Cri.  438, 
5th  ed. 

*So  a  common  scold  is  indictable  as  a  common  nuisance,  and  r*ooK 
upon  conviction  mav  be  fined  or  imprisoned,  or  put  into  the  ^ 
ducking-stooh  Hawk.  P.  C.  b.  1,  c.  75,  s.  14;  4  Bl.  Com.  168. 
The  particulars  need  not  be  set  forth  in  the  indictment.  Hawk. 
P.  C.  b.  2,  c.  25,  s.  59  ;  nor  is  it  necessary  to  prove  the  particu- 
lar expressions  used ;  it  is  sufficient  to  give  in  evidence  generally  that 
the  defendant  is  always  scolding.^  Fer  Buller,  J.,  I' Anson  v.  Stuart, 
1  T.  R.  754. 

Proof  of  the  liability  of  the  defendant.  A  man  may  be  guilty 
of  a  nuisance  by  the  act  of  his  agent  or  servant.^  Thus  it  has  been 
ruled  that  the  directors  of  a  gas  company  are  liable  for  an  act  done 

'  State  r.  Williams,  2  Over.  108.  Case  of  Greenwault  et  al.,  4  Rog.  Rec  174; 
Field's  Case,  6  Id.  90;  James  v.  Commonwealth,  12  S.  &  R.  220.  But  the  punishment 
by  the  ducking-stool  cannot  be  inflicted  in  Pennsylvania.  Id.  An  indictment  for 
being  a  connnon  brawler  may  be  sustained  by  proof  of  habitually  immoderate  and 
vituperative  language,  though  used  only  in  the  liouse  of  the  accused  and  in  the  heat 
of  sudden  altercation,  if  so  public  and  frequent  as  to  disturb  the  public  peace.  Com- 
monwealth I'.  Foley,  99  Mass.  497.     S. 

*  In  an  indictment  for  the  sale  of  liquor,  the  intention  of  the  principal  is  essen- 
tial, and  he  is  not  criminally  liable  for  sales  unlawfully  made  by  his  clerk.  State  v. 
Hayes,  67  Iowa,  27. 


1034  NUISANCE. 

by  their  superintendent  and  engineer,  under  a  general  authority  to 
manage  their  works,  tliongh  they  are  personally  ignorant  of  the  par- 
ticnhir  plan  adopted,  and  though  such  ])lan  l)e  a  departure  from  the 
original  and  understood  method,  which  the  directors  had  no  reason  to 
sup[)o.sc  discontinued.  R.  v.  Medley,  G  C.  &  P.  292,  25  E.  C.  L.;  see 
this  case  ante,  p.  819. 

The  owner  of  a  slate  quarry  was  indicted  for  a  nuisance  in  obstruct- 
ing a  navigable  river.  He  was  unable  tlirough  age  and  infirmity  to 
superintend  the  working  of  the  quarry,  and  the  nuisance  Mas  caused 
by  neglect  of  his  general  orders,  but  the  judge  directed  the  jury  that 
it  was  his  duty  to  take  all  proper  precautions  to  prevent  the  rubbish 
from  falling  into  the  river,  and  that  if  a  substantial  part  of  the  rub- 
bish went  into  the  river  from  having  been  improperly  stacked,  he  was 
guilty  of  having  caused  a  nuisance,  although  the  act  might  have  been 
committed  without  his  knowledge  and  against  his  general  orders  ;  and 
this  direction  was  upheld  on  a  rule  for  a  new  trial.  R.  v.  Stephens,  1 
L.  R.,  Q.  B.  702. 

The  indictment  charged  the  defendant  with  keeping  certain  inclosed 
lands  near  the  king's  highway,  for  the  purpose  of  persons  frequent- 
ing the  same  to  practise  rifle  shooting,  and  to  shoot  at  pigeons  with 
fire-arms ;  and  that  he  unlaAvfully  and  injuriously  caused  divers 
persons  to  meet  there  for  that  purpose,  and  suffered  and  caused  a 
great  number  of  idle  and  disorderly  persons  armed  with  fire-arras, 
to  meet  in  the  highways,  etc.,  near  the  said  inclosed  grounds,  dis- 
charging fire-arms,  making  a  great  noise,  etc.,  by  which  the  king's 
subjects  were  disturbed  and  put  in  peril.  At  the  trial  it  Mas  proved 
that  the  defendant  had  converted  his  premises,  which  Avere  situate  at 
Bayswater,  in  the  county  of  Middlesex,  near  the  public  highway  there, 
into  a  shooting-ground,  where  persons  came  to  shoot  with  rifles  at  a 
target,  and  also  at  pigeons  ;  and  that  as  the  pigeons  which  were  fired 
at  frequently  escaped,  persons  collected  outside  of  the  ground,  and  in 
the  neighboring  field  to  shoot  at  them  as  they  strayed,  causing  a 
great  noise  and  disturbance,  and  doing  mischief  by  the  shot.  It 
was  held,  that  the  evidence  supported  the  allegation  that  the  de- 
fendant caused  such  persons  to  assemble,  discharging  fire-arms,  etc., 
inasmuch  as  their  so  doing  was  a  probable  consequence  of  his  kee])ing 
ground  for  shooting  pigeons  in  such  a  place.  R.  v.  Moore,  3  B.  &  Ad. 
184,  23  E.  C.  L. 

If  the  owner  of  land  erect  a  building  which  is  a  nuisance,  or  of 
which  the  occupation  is  likely  to  produce  a  nuisance,  and  let  the 
land,  he  is  liable  to  an  indictment  for  such  nuisance  being  con- 
tinued or  created  during  the  term.  So  he  is,  if  he  let  a  building 
which  requires  particular  care  to  prevent  the  occupation  from  being  a 
nuisance,  and  the  nuisance  occur  for  want  of  such  care  on  the  part 
*89fi1  *^^  ^^^^  tenant.  If  a  party  buy  the  reversion  during  a  tenancy, 
-■  and  the  tenant  afterwards,  during  his  term,  erect  a  nuisance, 
the  reversioner  is  not  liable  for  it :  but  if  such  reversioner  re-let,  or 
having  an  opportunity  to  determine  the  tenancy,  omit  to  do  so,  allow- 
ing the  nuisance  to  continue,  he  is  liable  for  such  continuance.     Per 


NUISANCE.  1035 

Littledale,  J.  And  such  purcliaser  is  liable  to  be  indicted  for  the  con- 
tinuance of  the  nuisance,  if  the  original  reversioner  would  have  been 
liable,  though  the  purchaser  has  had  no  opportunity  of  putting  an  end 
to  the  tenant's  interest,  or  abating  the  nuisance/     R.  v.  Pedley,  1  Ad. 

6  E.  822,  28  E.  C.  L. 

The  erection  of  a  small-pox  hospital  was  found  by  a  jury  to  be  a 
nuisance  ;  and  the  court  held  it  was  no  answer  to  say  that  the  deiend- 
ant  acted  bond  fide  under  the  powers  of  an  Act  of  parliament.  Hill 
V.  Met.  Asylum  Managers,  6  Ap.  Cas.  193  ;  50  L.  J.  (H.  L.),  353. 

On  an  indictment  for  a  nuisance  in  carrying  on  an  offensive  trade,  a 
conviction  of  the  defendant  before  justices  for  an  offence  against  the 
16  &  17  Vict.  c.  128,  s.  1,  committed  at  the  same  place,  and  in  the 
course  of  the  same  trade,  but  anterior  to  the  period  comprised  in  the 
indictment,  is  not  admissible  in  evidence,  as  the  offence  in  the  two 
cases  is  not  necessarily  the  same.  And  qucere,  per  Lord  Campbell,  C 
J.,  and  Coleridge,  J.,  whether  it  would  be  admissible,  even  if  the 
offence  were  the  same.  Semble,  per  Wightman,  J.,  that  it  would. 
K.  V.  Faire,  8  E.  &  B.  486,  92  E.  C.  L. 

Punishment  and  abatement  of  the  nuisance.  The  punishment 
imposed  by  law  on  a  person  convicted  of  a  nuisance  is  fine  and  impris- 
onment ;  but  as  the  removal  of  the  nuisance  is  of  course  the  object  of 
the  indictment,  the  court  will  adapt  the  judgment  to  the  circumstances 
of  the  case.  If  the  nuisance,  therefore,  is  alleged  in  the  indictment  to 
be  still  continuing,  the  judgment  of  the  court  may  be,  that  the  de- 
fendant shall  remove  it  at  his  own  cost.  1  Hawk.  c.  75,  s.  14.  But 
where  the  existence  of  the  nuisance  is  not  averred  in  the  indictment, 
then  the  judgment  of  abatement  would  not  be  proper ;  for  it  would 
be  absurd  to  give  judgment  to  abate  a  thing  which  does  not  appear  to 
exist.     R.  V.  Stead,  8  T.  R.  142  ;  and  see  R.  v.  Justices  of  Yorkshire, 

7  T.  R.  468.  And  where  the  court  are  satisfied  that  the  nuisance  is 
effectually  removed  before  judgment  is  prayed  upon  the  indictment, 
they  will  in  that  case  also  refuse  to  give  judgment  to  abate  it.  R.  v. 
Incledon,  13  East,  127.  When  judgment  of  abatement  is  given,  it  is 
only  to  remove  or  pull  down  so  much  of  the  thing  as  actually  causes 
the  nuisance;  as,  if  a  house  be  built  too  high,  the  judgment  is  to  pull 
down  only  so  much  of  it  as  is  too  high.  And  the  like  where  the  de- 
fendant is  convicted  of  a  nuisance  in  carrying  on  an  offensive  trade,  in 
which  case  the  judgment  is  not  to  pull  down  the  building  where  the 
trade  is  carried  on,  but  only  to  prevent  the  defendant  from  using  it 
again  for  the  purpose  of  the  offensive  trade.^  R.  v.  Pappineau,  1  Str. 
686  ;  see  9  Co.  53 ;  Co.  Ent.  92  b. 

^  To  maintain  an  indictment  against  one  for  a  nuisance,  it  is  not  enough  merely  to 
show  him  to  be  the  owner  of  the  land  upon  which  it  exists,  but  it  must  appear  that  he 
either  erected  or  continued  it,  or  in  some  way  sanctioned  its  erection  or  continuance. 
People  V.  Townsend,  3  Hill,  479.     S. 

*  When  it  is  the  wrongful  use  of  a  building  that  constitutes  a  nuisance,  the  remedy 
is  to  stop  such  use,  not  tear  down  or  demolish  the  building.  Barclay  v.  Common- 
wealth, 25  Pa.  St.  503.    S. 


1036  NUISANCE. 

Where  a  defendant  had  entered  into  a  recognizance  to  appear  at  the 
assizes  and  plead  to  an  indictment  for  nuisance,  and  at  the  time  of  the 
assizes  he  was  on  the  continent  in  ill  health  ;  the  nuisance  having 
been  abated,  and  the  prosecutor  being  willing  to  consent  to  an  acquit- 
tal ;  Patteson,  J.,  after  conferring  with  Erskine,  J.,  under  these  cir-  " 
cumstanees,  allowed  a  verdict  of  not  guilty  to  be  taken.  11.  v.  Mac- 
michael,  8  C.  &  P.  755,  34  E.  C.  L. 
^g^^l        *The  18  &  19  Vict.  c.  121,  amended  by  the  23  &  24  Vict. 

*^  -^  c.  77,  and  29  &  30  Vict.  c.  90,  consolidates  and  amends  the 
Nuisances  Removal  and  Diseases  Prevention  Acts  of  1848  and  1849; 
sect.  8  defines  what  shall  be  deemed  nuisances  within  the  provisions  of 
that  Act,  and  sect.  27  gives  a  summary  remedy  in  cases  of  nuisances 
arising  from  the  carrying  on  of  noxious  trades  and  manufactures. 
These  Acts,  except  so  far  as  they  relate  to  the  INIetropolis,  are  now  re- 
pealed by  the  Public  Health  Act,  1875  (38  &  39  Vict.  c.  55). 

See  further,  titles  "  Bridges,"  "  Highways." 


OATHS — UNLAWFUL.  1037 


*OATHS— UNLAWFUL.  [*828 

Statutes ,        .        , 828 

Proof  of  the  oath 8^9 

of  aiding  and  assisting       ........  829 

Proof  for  the  prisoner 830 

Disclosure  of  facts 830 

Unlawful  combinations ,  830 

Administering,  etc.,  voluntary  oaths,  etc 831 

Statutes.  The  offence  of  taking  or  administering  unlawful  oaths  is 
provided  against  by  the  37  Geo.  3,  c.  123  (E.),  and  the  52  Geo.  3,  c. 
104  (E.). 

By  the  former  of  these  statutes  (sect.  1),  it  is  enacted,  "  that  any 
person  or  persons  who  shall,  in  any  manner  or  form  whatsoever, 
administer,  or  cause  to  be  administered,  or  be  aiding  or  assisting  at,  or 
present  at,  and  consenting  to  the  administering  or  taking  of  any  oath 
or  engagement,  purporting  or  intending  to  bind  the  person  taking 
the  same,  to  engage  in  any  mutinous  or  seditious  purpose,  or  to 
disturb  the  public  peace,  or  to  be  of  any  association,  society,  or  con- 
federacy, formed  for  any  such  purpose ;  or  to  obey  the  order  or  com- 
mands of  any  committee  or  body  of  men  not  lawfully  constituted,  or 
of  any  leader  or  commander,  or  other  person  not  having  authority  by 
law  for  that  purpose  ;  or  not  to  inform  or  give  evidence  against  any 
associated  confederate  or  other  person ;  or  not  to  reveal  or  dis- 
cover any  unlawful  combination  or  confederaciy  ;  or  not  to  reveal  or 
discover  any  illegal  act  done,  or  to  be  done  ;  or  not  to  reveal  or  dis- 
cover any  illegal  oath  or  engagement,  which  may  have  been  adminis- 
tered or  tendered  to,  or  taken  by  such  person  or  persons,  or  to  or  by 
any  other  person  or  persons,  or  the  import  of  any  such  oath  or  en- 
gagement, shall,  on  conviction,  be  adjudged  guilty  of  felony,  and  be 
transported  for  any  term  not  exceeding  seven  years,  and  every 
person  who  shall  take  such  oath  or  engagement  not  being  compelled 
thereto,"  is  subject  to  the  same  punishment.  See  R.  v.  Mark,  3  East, 
157. 

By  the  52  Geo.  3,  c.  104,  s.  1,  "every  person  who  shall  in  any 
manner  or  form  whatsoever  administer,  or  cause  to  be  administered, 
or  be  aiding  or  assisting  at  the  administering  of,  any  oath  or  en- 
gagement, purporting  or  intending  to  bind  the  person  taking  the 
same  to  commit  any  treason,  or  murder,  or  any  felony  punishable 
by  law  with  death,  shall,  on  conviction,  be  adjudged  guilty  of  felony 
[and  suffer  death  as  a  felon,  without  benefit  of  clergy],  and  every 
person  who  shall  take  any  such  oath  or  engagement,  not  being  com- 
pelled thereto,  shall,  on  conviction,  be  adjudged  guilty  of  felony,  and 
be  transported  for  life,  or  for  such  term  of  years  as  the  court  shall 
adjudge." 


1038  OATHS — UNLAWFUL. 

*«9q1  *N'ow  by  the  7  Will.  4  and  1  Vict.  c.  91,  after  reciting  so 
J  much  of*  the  above  section  as  relates  to  the  administering  of  the 
oaths  therein  mentioned,  and  also  the  third  section  of  the  same  Act,  it 
is  enacted,  "  that  if  any  person  shall,  alter  the  commencement  of  this 
Act,  be  convicted  of  any  of  the  offences  hereinbefore  mention(»d,  such 
person  shall  not  suffer  death,  or  have  sentence  of  death  awarded  against 
him  or  her  for  the  same,  but  shall  be  liable,  at  the  discretion  of  the 
court,  to  be  transported  beyond  the  seas  [now  penal  servitude]  for  the 
term  of  the  natural  life  of  such  person,  or  for  any  term  not  less  than  fif- 
teen years,  or  to  be  imprisoned  for  any  term  not  exceeding  three  years." 

By  s.  2,  in  cases  of  imprisonment,  the  court  may  award  hard  labor 
and  solitary  confinement. 

The  statutes  are  not  confined  to  oaths  administered  with  a  seditious 
or  mutinous  intent.  R.  v.  Ball,  6  0.  &  P.  563,  25  E.  C.  L.;  R.  v. 
Brodribb,  Id.  578.  And  it  is  sufficient  to  aver  that  the  oath  was  ad- 
ministered, not  to  give  evidence  against  a  person  belonging  to  an  asso- 
ciation of  persons  associated  to  do  a  "  certain  illegal  act." — R.  v.  Brod- 
ribb, supra. 

Proof  of  the  oath.  With  regard  to  what  is  to  be  considered  an 
oath  within  these  statutes,  it  is  enacted  by  the  37  Geo.  3,  c.  123,  s.  5, 
that  any  engagement  or  obligation  whatsoever,  in  the  nature  of  an 
oath,  and  by  52  Geo.  3,  c.  104,  s.  6,  that  any  engagement  or  obligation 
whatsoever  in  the  nature  of  an  oath,  purporting  or  intending  to  bind 
the  person  taking  the  same  to  commit  any  treason  or  murder,  or  any 
felony  punishable  by  law  with  death,  shall  be  deemed  an  oath  within 
the  intent  and  meaning  of  those  statutes,  in  whatever  form  or  manner 
the  same  shall  be  administered  or  taken,  and  whether  the  same  shall 
be  actually  administered  by  any  person  or  persons  to  any  other  person 
or  persons,  or  taken  by  any  person  or  persons,  without  any  adminis- 
tration thereof  by  any  other  person  or  persons. 

It  is  not  necessary  in  the  indictment  to  set  forth  the  words  of  the 
oath  or  engagement,  the  purport  of  some  material  part  thereof  is 
sufficient,  37  Geo.  3,  c.  123,  s.  4  ;  52  Geo.  3,  c.  104,  s.  5  ;  R.  v.  Moore, 
6  East,  419  (n).  Parol  evidence  may  be  given  of  the  oath,  though 
the  party  administering  it  appeared  to  read  it  from  a  paper,  to  pro- 
duce which  no  notice  has  been  given.  R.  v.  Moore,  supra.  And 
where  the  terms  of  the  oath  are  ambiguous,  evidence  of  the  declara- 
tions of  the  party  administering  it,  made  at  the  time,  is  admissible  to 
show  the  meaning  of  those  terms.     Id. 

If  the  book  on  which  the  oath  was  administered  was  not  the  Testa- 
ment, it  is  immaterial,  if  the  party  taking  the  oath  believes  himself 
to  be  under  a  binding  engagement.  R.  v.  Brodribb,  6  C.  &  P.  571, 
25  E.  C.  L.;  R.  V.  Loveless,  1  Moo.  &  Rob.  349  ;  6  C.  &  P.  596,  25 
E.  C.  L.  Where  the  prisoners  were  indicted  under  the  37  Geo.  3,  c. 
123,  Williams,  J.,  said,  that  with  regard  to  the  oath  contemplated  by 
the  Act  of  parliament,  it  was  not  required  to  be  of  a  formal  nature, 
but  that  it  was  sufficient  if  it  was  intended  to  operate  as  an  oath,  and 
was  so  understood  by  the  party  taking  it.     The  precise  form  of  the 


OATHS — UNLAWFUL.  ]  039 

oath  was  not  material,  and  the  Act  provided  against  any  evasions  of 
its  inteutiuus  by  declaring  (sect.  5),  that  any  engagement  or  obligation 
M^hatever,  in  the  nature  of  an  oath,  should  be  deemed  an  oath  within 
the  intent  and  meaning  of  the  Act,  in  whatever  form  or  manner  the 
same  should  be  administered  or  taken. 

Proof  of  aiding  and  assisting.  Who  shall  be  deemed  persons 
♦aiding  and  assisting  in  the  administration  of  unlawful  oatiis  is  r^oon 
declared  by  the  third  section  of  the  37  Geo.  3,  c.  123,  Nvhich  ■- 
enacts,  that  persons  aiding  or  assisting  in,  or  present  and  consenting  to, 
the  administering  or  taking  of  any  oath  or  engagement  beibre  men- 
tioned in  that  Act,  and  persons  causing  any  such  oath  or  engagement 
to  bo  administered  or  taken,  though  not  present  at  the  administering  or 
taking  thereof,  shall  be  deemed  principal  oifenders,  and  tried  as  such, 
although  the  person  or  persons  wlio  actually  administered  such  oath  or 
engagement,  if  any  such  there  be,  shall  not  have  been  tried  or  convicted. 

Proof  for  prisoner — disclosure  of  facts.  In  order  to  escape  the 
penalties  of  these  statutes,  it  is  not  sufficient  for  the  prisoner  merely 
to  prove  that  he  took  the  oath  or  engagement  by  comphlsion,  but,  in 
order  to  establish  that  defence,  he  must  show  that  he  has  complied 
with  the  requisitions  of  the  statutes,  by  the  earlier  of  which  (sect.  2), 
it  is  enacted,  that  compulsion  shall  not  justify  or  excuse  any  person 
taking  such  oath  or  engagement,  unless  he  or  she  shall  within  four 
days  after  the  taking  thereof,  if  not  prevented  by  actual  force  or  sick- 
ness, and  then  within  four  days  after  the  hindrance  produced  by 
such  force  or  sickness  shall  cease,  declare  the  same,  together  with  the 
whole  of  what  he  or  she  knows  touching  the  same,  and  the  person  or 
persons  to  whom  and  in  whose  presence,  and  when  and  where  such 
oath  or  engagement  was  administered  or  taken,  by  information  on  oath 
before  one  of  his  Majesty's  justices  of  the  peace,  or  one  of  his  Majes- 
ty's principal  secretaries  of  state,  or  of  his  Majesty's  privy  council,  or 
in  case  the  person  taking  such  oath  or  engagement  shall  be  in  actual 
service  in  his  Majesty's  forces  by  sea  or  land,  then  by  such  information 
on  oath  as  aforesaid,  or  by  information  to  his  commanding  officer. 
The  52  Geo.  3,  c.  104,  contains  a  similar  provision  (sect.  2),  iburteen 
days  being  substituted  for  four  days. 

It  is  also  provided  by  both  the  above  statutes,  that  any  person  who 
shall  be  tried  and  acquitted  or  convicted  of  any  oflPence  against  the 
Acts,  shall  not  be  liable  to  be  prosecuted  again  for  the  same  offence  or 
fact  as  high  treason,  or  misprision  of  high  treason ;  and  further,  that 
nothing  in  the  Acts  contained  shall  be  construed  to  extend  to  prevent 
any  person  guilty  of  any  offence  against  the  Acts,  and  who  shall  not  be 
tried  for  the  same,  as  an  offence  against  the  Acts,  from  being  tried  for 
the  same,  as  liigh  treason  or  misprision  of  high  treason,  in  such  manner 
as  if  these  Acts  had  not  been  made. 

Unlawful  combinations.  As  connected  with  this  head  of  offence 
the  following  statutes  relative  to  unlawful  combinations  are  shortly 
referred  to. 


1040  OATHS — UNLAWFUL,. 

By  the  39  Geo.  3,  c.  79,  s.  2  (E.),  all  societies,  the  members  whereof 
are  required  to  take  unlawful  oaths  or  engagements  within  the  intent 
of  the  37  Geo.  3,  c.  123,  or  any  oath  not  required  or  authorized  by  law, 
are  declared  unlawful  combinations. 

By  s.  8,  offenders  may  be  summarily  convicted,  or  may  be  proceeded 
against  by  indictment,  and  in  the  latter  case  are  liable  to  transporta- 
tion lor  seven  years,  or  to  be  imprisoned  for  two  years. 

By  the  57  Geo.  3,  c.  19,  s.  25  (E.),  all  societies,  the  members 
whereof  shall  be  required  to  take  any  oath  or  any  engagement  which 
shall  be  unlawful  within  the  37  Geo.  3,  c.  123,  or  the  52  Geo.  3,  c. 
104,  or  to  take  any  oath  not  required,  or  authorized  by  law,  etc.,  are 
*eQn  *^o  ^^  deemed  guilty  of  unlawful  combinations  within  the  39 
^'^^J  Geo.  3   c.  79. 

In  R.  V.  Dixon,  6  C.  &  P.  601,  25  E.  C.  L.,  Bosanquet,  J.,  held  that 
every  pei'son  engaging  in  an  association,  the  members  of  which,  in  con- 
sequence of  being  so,  take  an  oath  not  required  by  law,  is  guilty  of  an 
offence  within  the  57  Geo.  3,  c.  19,  s.  25. 

Administering,  etc.,  voluntary  oaths,  etc.  By  the  5  &  6  Will.  4, 
c.  62,  s.  13,  "  it  shall  not  be  lawful  for  any  justice  of  the  peace  or 
other  person  to  administer,  or  cause  or  allow  to  be  administered,  or  to 
receive,  or  cause  or  allow  to  be  received,  any  oath,  affidavit,  or 
solemn  affirmation,  touching  any  matter  or  thing  whereof  such  justice 
or  other  person  hath  not  jurisdiction  or  cognizance  by  some  statute  in 
force  at  the  time  being ;  provided  always,  that  nothing  herein  con- 
tained shall  be  construed  to  extend  to  any  oath,  affidavit,  or  solemn 
affirmation,  before  any  justice  in  any  matter  or  thing  touching  the 
preservation  of  the  peace,  or  the  prosecution,  trial,  or  punishment  of 
offences,  or  touching  any  proceedings  before  either  of  the  houses  of 
parliament,  or  any  committee  thereof  respectively,  nor  to  any  oath, 
affidavit,  or  affirmation  which  may  be  required  by  the  laws  of  any 
foreign  country  to  give  validity  to  instruments  in  writing  designed  to 
be  used  in  such  foreign  countries  respectively."  See  R.  v.  Nott,  4  Q. 
B.  768,  45  E.  C.  L. 


OFFICES — OFFENCES  RELATING  TO.  1041 


♦OFFICES— OFFENCES  RELATING  TO.  [*832 

PAGE 

Proof  of  malfeasance — illegal  acts  in  general      ,        ,        ,        .        .  832 

of  nonfeasance 833 

of  extortion         .        ,        .        •        • 833 

Extortion  by  public  officers  in  the  East  Indies        ....  834 

Proof  on  prosecutions  for  refusing  to  execute  an  office      .        .        .  834 

Under  this  head  will  be  considered  the  evidence  requisite  in  prose- 
cutions against  officers, — 1,  for  malfeasance ;  2,  for  nonfeasance;  3, 
for  extortion  ;  and  4,  for  refusing  to  execute  an  office. 

Proof  of  malfeasance — illegal  acts  in  general.  It  is  a  general  rule 
that  a  public  officer  is  indictable  for  misbehavior  in  his  office. 
Anon,  6  Mod.  96.  And  where  the  act  done  is  clearly  illegal,  it  is 
not  necessary,  in  order  to  support  an  indictment,  to  show  that  it  was 
done  with  corrupt  motives.  Thus,  where  a  licence  having  been 
refused  by  certain  magistrates,  another  set  of  magistrates,  liaving 
concurrent  jurisdiction,  appointed  a  subsequent  day  for  a  meeting, 
and  granted  the  licence  which  had  been  refused  before,  it  was  held 
that  this  was  an  illegal  act,  and  punishable  by  indictment,  without 
the  addition  of  corrupt  motives.  R.  v.  Sainsbury,  4  T.  E,.  451.  Still 
more  is  such  an  offence  punishable  when  it  proceeds  from  malicious 
or  corrupt  motives.^  R.  v.  Williams,  3  Burr.  1317  ;  R.  v.  Holland, 
1  T.  R.  692.  A  gaoler  is  punishable  for  barbarously  misusing  the 
prisoners.  Hawk.  P.  C.  b.  1,  c.  66,  s.  2.  So  overseers  of  the  poor 
for  misusing  paupers,  as  by  lodging  them  in  unwholesome  apartments. 
R.  V.  Wetheril,  Cald.  432.  Or  by  exacting  labor  from  such  as  are 
unfit  to  work.  R.  v.  Winship,  Cald.  76.  Public  officers  are  also  in- 
dictable for  frauds  committed  by  them  in  the  course  of  their  employ- 
ment. As  where  an  overseer  receives  from  the  father  of  a  bastard  a 
sum  of  money  as  a  compensation  with  the  parish,  and  neglects  to  give 
credit  for  this  sum  in  account,  he  is  punisliable,  though  the  contract  is 
illegal.  R.  v.  Martin,  2  Campb.  26S.  See  also  R.  v.  Bembridge, 
cited  6  East,  136.  Where  an  officer  neglects  a  duty  incumbent  on  him, 
either  by  common  law  or  statute,  he  is  for  his  fault  indictable.  Per 
Car.,  R.  V.  Wyat,  1  Salk.  380. 

Upon  an  indictment  against  a  public  officer  for  neglect  of  duty,  it 
is  sufficient  to  state  that  he  was  such  officer  without  stating  his 
appointment ;   neither  is  it  necessary  to  aver  that  the  defendant  had 

'  While  it  is  true  that  every  culpable  neglect  of  duty,  enjoined  on  a  public  officer, 
either  by  common  law  or  by  statute,  is  an  indictable  offence,  yet  the  presentment  in 
such  case,  unless  the  act  of  the  oflicer  is  clearly  illegal,  must  shoAV  with  sufiicicnt  ter- 
tainty  that  it  proceeded  from  corrupt  or  culpable  motives.  State  v.  Buxton,  2  Swan, 
67.     S. 

6Q 


1042  OFFICES OFFENCES  RELATING  TO. 

notice  of  all  the  facts  alleged  in  the  indictment,  if  it  was  his  official 
duty  to  have  known  them.  So  where  a  defendant  is  charged  with 
disobedience  of  certain  orders  communicated  to  him,  it  need  not  be 
alleged  that  such  orders  still  continue  in  force,  as  they  will  be 
assumed  to  continue  in  force  until  they  are  revoked.  And  an  indict- 
ment for  neglect  of  duty  under  a  particular  statute  need  not  state  that 
*soQ-i  *the  neglect  was  corrupt,  if  the  statute  makes  a  wilful  neglect  a 
^^"^-l   misdemeanor.     R.  v.  Holland,  5  T.  R.  607. 

Every  malfeasance  or  culpable  nonfeasance  of  an  officer  of  justice, 
with  relation  to  his  office,  is  a  misdemeanor,  and  punishable  with  fine 
or  imprisonment,  or  both. 

As  to  the  sale  of  offices,  see  R.  v.  Charretie,  13  Q.  B.  447,  (^Q 
E.  C.  L.;  and  Hopkins  v.  Prescott,  4  C.  B.  578,  56  E.  C.  L. 

Proof  of  nonfeasance.  Upon  a  prosecution  for  not  performing 
the  duties  of  an  office,  the  prosecutor  must  prove,  1,  that  the  defend- 
ant holds  the  office ;  2,  that  it  was  his  duty,  and  within  his  power  to 
perform  the  particular  act ;  and  3,  that  he  neglected  so  to  do. 

Where  an  officer  is  bound  by  virtue  of  his  office  to  perform  an  act, 
the  neglect  to  perform  that  act  is  an  indictable  offence.  Thus  a  coro- 
ner, 2  Chitt.  C.  L.  255 ;  a  constable,  1  Russ.  Cri.  307,  5th  ed.;  R.  v. 
Wyat,  1  Salk.  380 ;  a  sheriff,  R.  v.  Antrobus,  6  C.  &  P.  784,  25  E. 
C  L.;  and  an  overseer  of  the  poor,  R.  v.  Tawney,  1  Bott.  333,  are 
indictable  for  not  performing  their  several  duties.  The  majority  of 
the  judges  were  of  opinion,  that  an  overseer  cannot  be  indicted  for 
not  relieving  a  pauper,  unless  there  has  been  an  order  of  justices  for 
such  relief,  or  unless  in  a  case  of  immediate  and  urgent  necessity. 
R.  v.  Meredith,  Russ.  &  Ry.  46.  But  where  the  indictment  stated 
that  the  defendant  (an  overseer)  had  under  his  care  a  poor  woman  be- 
longing to  his  township,  but  neglected  to  provide  for  her  necessary 
meat,  etc.,  whereby  she  was  reduced  to  a  state  of  extreme  weakness, 
and  afterwards,  through  want,  etc.,  died,  the  defendant  was  convicted, 
and  sentenced  to  a  year's  imprisonment.  R.  v.  Booth,  Id.  47  (w). 
And  in  a  case  where  an  overseer  was  indicted  for  neglecting,  when  re- 
quired, to  supply  medical  assistance  to  a  pauper  laboring  nnder  dan- 
gerous illness,  it  was  held  that  the  offence  was  sufficiently  charged  and 
proved,  though  the  pauper  was  not  in  the  parish  workhouse,  nor  had 
previously  to  his  illness  received  or  stood  in  need  of  parish  relief. 
R.  V.  Warren,  Id.  48  (w). 

By  the  11  Geo.  1,  c.  4,  the  chief  officers  of  corporations,  absenting 
themselves  on  the  charter  day  for  the  election  of  officers,  shall  be  im- 
prisoned for  six  months.  Such  offence,  however,  is  not  indictable 
within  the  statute,  unless  their  presence  is  necessary  to  constitute  a 
legal  corporate  assembly.  R.  v.  Corry,  5  East,  372.  This  statute  is 
repealed  as  to  boroughs  within  the  Municipal  Corporations  Act,  1882, 
See  45  &  46  Yict.  c.  50,  Sched.  I,  part  ii. 

Proof  of  extortion.  One  of  the  most  serious  offences  committed 
by  persons  in  office  is  that  of  extortion,  which  is  defined  to  be  the 


OFFICES — OFFENCES  RELATING  TO.  1043 

takino;  of  money  by  an  officer  by  color  of  his  office,  either  where  none 
at  all  is  due,  or  not  so  much  is  due,  or  where  it  is  not  yet  due.^ 
Hawk.  P.  C.  b.  1,  c.  68,  s.  1.  So  the  refusal  by  a  public  officer  to 
perform  the  duties  of  his  office,  until  his  fees  have  been  paid,  is 
extortion.  3  Inst.  149  ;  R.  v.  Hescot,  1  Salk.  330;  Hutt.  53.  So  it 
is  extortion  for  a  miller  or  a  ferryman  to  take  more  toll  than  is  due 
by  custom.  R.  v.  Burdctt,  infra.  So  where  the  farmer  of  a  market 
erected  such  a  number  of  stalls  that  the  market  people  had  not 
space  to  sell  their  wares,  it  was  held  that  the  taking  money  from 
them  for  the  use  of  the  stalls  was  extortion.  R.  v.  Burdett,  1  Ld. 
Raym.  148. 

*The  prosecutor  must  be  prepared  to  prove,  first,  that  the  r^icoq^ 
defendant  fills  the  office  in  question.  For  this  purpose  it  will  ■- 
be  sufficient  to  show  that  he  has  acted  as  such  officer ;  and  secondly, 
the  fact  of  the  extortion.  This  must  be  done  by  showing  what  are 
the  usual  fees  of  the  office,  and  proving  the  extortion  of  more. 
Several  persons  may  be  indicted  jointly,  if  all  are  concerned  ;  for 
in  this  offence  there  are  no  accessories,  but  all  are  principals.  R. 
V.  Atkinson,  2  Ld.  Raym.  1248;  1  Salk.  382;  R.  v.  Loggen,  1 
Str.  75. 

The  indictment  must  state  the  sum  which  the  defendant  received, 
but  the  exact  sum  need  not  be  proved,  as  where  he  is  indicted  for  ex- 
torting twenty  shillings,  it  is  sufficient  to  prove  that  he  extorted  one 
shilling.  R.  v.  Burdett,  1  Ld.  Raym.  148  ;  R.  v.  Gillham,  6  T.  R.  267; 
R.  V.  Higgins,  4  C.  &  P.  247,  19  E.  C.  L. 

The  offence  of  extortion  is  punishable  as  a  misdemeanor  at  common 
law,  by  fine  and  imprisonment,  and  by  removal  from  office.  Hawk. 
P.  C.  b.  1,  c.  68,  s.  5.  Penalties  are  likewise  added  by  the  statute  of 
Westm.  1,  c.  26. 

It  is  also  an  indictable  offence  to  persuade  another  to  extort  money 
from  a  person,  whereby  money  actually  was  extorted  from  him.  R.  v. 
Tracey,  3  Salk.  192. 

Extortion  by  public  ofB.cers  in  the  East  Indies.  The  33  Geo.  3, 
c.  52,  s.  62,  enacts,  that  the  demanding  or  receiving  any  sum  of  money, 
or  other  valuable  thing,  as  a  gift  or  present,  or  under  color  thereof, 
whether  it  be  for  the  use  of  the  party  receiving  the  same,  or  for  or 
pretended  to  be  for  the  use  of  the  East  India  Company,  or  of  any  other 

^  It  is  an  indictable  offence  in  public  officers  to  exact  and  receive  anything  more  for 
the  performance  of  their  duty  than  the  fees  allowed  by  law.  Gillmore  v.  Lewis,  12 
O.  281.  The  fees  must  be  wilfully  and  corruptly  demanded.  It  is  not  extortion  in 
case  of  mistake  or  for  extra  trouble  in  conformity  with  usage.  Commonwealth  v. 
Shed,  2  Mass.  227.  There  must  be  the  receipt  of  money  or  some  other  thing  of 
value.  Taking  a  promissory  note  is  not  enough.  Commonwealth  v.  Corry,  2  Mass. 
524.  See  People  v.  Whaley,  6  Cow.  661.  It  is  not  necessary  in  an  indictment 
against  a  constable  for  extortion,  in  corruptly  and  by  color  of  his  office  collecting 
on  an  execution  more  than  was  due,  to  show  what  sum  he  had  extorted  for  his  fees. 
State  V.  Stotts,  5  Black.  460.  An  indictment  for  extortion  against  a  justice  of  the 
peace,  must  show  with  explicitness  that  the  fees  taken  by  the  officer  were  greater  than 
those  allowed  by  law.  Merely  to  allege  that  they  were  so,  is  not  sufficient.  State  v. 
Maires,  33  N.  J.  L.  142.    S. 


1044  OFFICES OFFENCES   RELATING  TO. 

person  whatsoever,  by  any  Britisli  snbjeet  holding  or  exercising  any 
office  or  employment  under  his  Majesty,  or  the  company  in  the  East 
Indies,  shall  be  deemed  to  be  extortion  and  a  misdemeanor  at  law,  and 
punished  as  such.  The  offender  is  also  to  forfeit  to  the  king  the  pres- 
ent received,  or  its  full  value ;  but  the  court  may  order  such  present  to 
be  restored  to  the  party  who  gave  it,  or  may  order  it  or  any  part  of  it, 
or  of  any  fine  which  they  shall  set  upon  the  offender,  to  be  paid  to  the 
prosecutor  or  informer. 

In  R.  V.  Douglas,  13  Q.  B.  74,  66  E.  C.  L.;  17  L.  J.,  M.  C.  176, 
Parke,  B.,  in  delivering  the  judgment  of  the  Exchequer  Chamber, 
confirming  that  of  the  Queen's  Bench,  said,  "  the  object  of  the  legis- 
lature was  to  prevent  a  person  receiving  any  gift,  or  present,  or  sum 
of  money,  in  the  East  Indies  (he  being  an  officer  of  the  government, 
or  of  the  East  India  Company),  absolutely,  whatever  the  reason  of 
that  gift  might  be ;"  and  added,  "it  was  thought  by  the  legislature, 
looking  at  the  balance  of  convenience  and  inconvenience,  that  great 
advantages  were  obtained  by  putting  an  end  to  gifts  altogether,  though 
it  might  be  at  the  expense  of  some  occasional  mischief  to  innocent 
persons." 

Proof  on  prosecutions  for  refusing  to  execute  an  office.  A  re- 
fusal to  execute  an  office  to  which  a  party  is  duly  chosen  is  an  indictable 
offence,  as  that  of  constable  ;  R.  v.  Lone,  2  Str.  920  ;  R.  v.  Genge, 
Cowp.  13  ;  or  overseer  ;  R.  v.  Jones,  2  Str.  1145;  7  Mod.  410  ;  1 
Russ.  Cri.  308,  5th  ed. 

The  prosecutor  must  prove  the  election  or  appointment  of  the  de- 
fendant, his  liability  to  serve,  notice  to  him  of  his  appointment,  and 
his  refusal.  It  must  appear  that  the  persons  appointing  him  had 
power  so  to  do.  Thus  on  an  indictment  for  not  serving  the  office  of 
*«'^'^1  ^constable  on  the  appointment  of  a  corporation,  it  must  be  stated 
J  and  proved  that  the  corporation  had  power  by  prescription  to 
make  such  an  appointment,  for  they  possess  no  such  power  of  common 
right.  R.  V.  Bernard,  2  Salk.  502 ;  1  Ld.  Raym.  94.  The  notice  of 
his  appointment  must  then  be  proved,  R.  v.  Harper,  5  Mod.  96,  and 
his  refusal,  or  neglect  to  perform  the  duties  of  the  office,  from  Avhich 
a  refusal  may  be  presumed. 

For  the  defence  it  may  be  shown  that  the  defendant  is  not  an  in- 
habitant resiant  of  the  place  for  which  he  is  chosen.  R.  v.  Adlard,  4 
B.  &  C.  772,  10  E.  C.  L.;  Donne  v.  Martyr,  8  B.  &  C.  62,  15  E.  C. 
L. ;  and  see  the  other  grounds  of  exception  enumerated  in  Archb.  Cr. 
Pr.  669,  10th  ed.  It  is  not  any  defence  that  the  defendant  resides  in 
tlie  jurisdiction  of  a  leet  within  a  hundred  or  place  for  which  he  is 
elected ;  R.  v.  Genge,  Cowp.  13  ;  or  that  no  constable  had  ever  before 
been  appointed  for  the  place.     2  Keb.  557. 

The  punishment  is  fine  or  imprisonment,  or  both.  See  R.  v.  Bower, 
1  B.  &  C.  587,  8  E.  C.  L. 

As  to  the  offence  of  bribing  officers  of  justice,  see  1  Russ.  Cri.  309, 
5th  ed. 


PEEJURY.  1045 


♦PERJURY.  [*836 

PAGE 

At  common  law •  836 

Proof  of  the  authority  to  administer  an  oath 836 

of  the  occasion  of  administering  the  oath        ....  843 

of  the  taking  of  the  oath 844 

of  the  substance  of  the  oatli 845 

of  the  materiality  of  the  matter  sworn .        ,        .        .        .  849 

of  introductory  averments 852 

of  the  falsity  of  the  matter  sworn 855 

of  the  corrupt  intention  of  the  defendant  .        .  .  856 

Witnesses,  number  requisite     .        , 856 

Statutes  relating  to  perjury 861 

Punishment 8G3 

Postponing  trials  for  perjury .  863 

Subornation  of  perjury     .        .  ......  864 

Proof  of  the  incitement .  864 

of  the  taking  of  the  false  oath       ....  864 

The  proofs  required  to  support  an  indictment  for  perjury  at  com- 
mon law  will  be  first  considered,  and  the  statutes  creating  the  offence 
of  perjury  in  various  cases  will  be  subsequently  stated. 

By  the  22  &,  23  Vict.  c.  17,  supra,  p.  192,  no  indictment  for  perjury 
is  to  be  preferred  without  previous  authority  as  there  mentioned.  See 
also  30  &  31  Vict.  c.  35,  s.  1,  in  Appendix, 

Perjury  at  common  law.  Perjury  at  common  law  is  defined  to  be 
a  wilful  false  oath  by  one  who,  being  lawfully  required  to  depose  to 
the  truth  in  any  proceeding  in  a  court  of  justice,  swears  absolutely  in 
a  matter  of  some  consequence  to  the  point  in  question,  whether  he  be 
believed  or  not.^  Hawk.  P.  C  b.  1,  c.  69,  s.  1.  The  proceedings, 
however,  are  not  confined  to  courts  of  justice.  Vide  post,  p.  841 
et  scq. 

The  necessity  for  showing  distinctly  that  the  false  oath  was  taken  in 
a  judicial  proceeding  is  not  dispensed  Avith  bv  the  23  Geo.  2,  c.  11,  s.  1 
(now  repealed).     R.  v.  Overton,  4  Q.  B.  83,*  45  E.  C.  L. 

To  support  an  indictment  for  perjury,  the  prosecutor  must  prove,  1 , 
the  authority  to  administer  an  oath  ;  2,  the  occasion  of  administering 
it ;  3,  the  taking  of  the  oath  ;  4,  the  substance  of  the  oath  ;  5,  the 
materiality  of  the  matter  sworn  ;  6,  the  introductory  averments  ;  7,  the 
falsitv  of  the  matter  sworn  ;  and  8,  the  corrupt  intention  of  the  de- 
fendant.    2  Stark.  Ev.  621,  2nd  ed. 

Proof  of  the  authority  to  administer  an  oath.  Where  the  oath  has 
been  administered   by  a  master   in  chancery,  surrogate,   or  commis- 

^  The  definition  of  Hawkins  has  the  words  "  in  a  course  of  justice,"  which  is  more 
accurate  than  the  phrase  in  the  text,  "  in  a  court  of  ju  tice."  Commonwealth  v.  Pow- 
ell, 2  Mete.  (Ky.)  10;  State  v.  Kennerly,  10  Rich.  Law,  152;  State  v.  Lament,  2  Wis. 
437.  Peijury  cannot  be  committed  in  an  official  oath.  State  v.  Dayton,  3  Zab. 
49.    S. 


1046  PERJURY. 

sioner  having  a  general  authority  for  that  jMirpose,  it  is  not  necessary 
to  prove  his  appointment ;  it  being  sufficient  to  show  that  he  has 
acted  in  that  character.  See  the  cases  cited,  ante,  pp.  6  and  17.  But 
*«'^71  *^^  ^"^'■'^  evidence  is  only  presumptive,  it  may  be  rebutted,  and 
-I  the  defendant  may  show  that  there  -was  no  appointment,  or 
that  it  was  illegal.  Thus,  af\er  proof  that  the  oath  had  been  made 
before  a  person  who  acted  as  a  surrogate,  the  defendant  showed  that 
he  had  not  been  appointed  according  to  the  canon,  and  was  acquitted. 
R.  V.  Verelst,  3  Camp.  432.  Where  a  party  administering  the  oath 
derives  his  authority  from  a  special  commission,  directed  to  him  for 
that  purpose,  it  is  necessary  to  prove  the  authority,  by  the  production 
and  proof  of  the  commission  wiiieh  creates  the  special  authority.  2 
Stark.  Ev.  622,  2nd  ed.  Thus,  upon  an  indictment  for  perjury  against 
a  bankrupt  in  passing  his  last  examination.  Lord  Ellenl)orough  ruled 
that  it  was  necessary  to  give  strict  proof  of  the  bankruptcy,  which 
went  to  the  authority  of  the  commissioners  to  administer  an  oath,  for 
unless  the  defendant  really  was  a  bankrupt  the  examination  was  un- 
authorized.i  11.  v.  Punshon,  3  Camp.  96 ;  3  B.  &  C.  354,  10  E.  C, 
L.     See  also  R.  v.  Ewington,  2  Moo.  C.  C.  223. 

Where  a  cause  was  referred  by  a  judge's  order,  and  it  was  directed 
that  the  witnesses  should  be  sworn  before  a  judge,  "or  before  a  com- 
missioner dull/  authorized/'  and  a  witness  was  sworn  before  a  com- 
missioner for  taking  affidavits  (empowei'ed  by  the  repealed  stat.  29 
Car.  2,  c.  5),  it  was  held  that  he  was  not  indictable  for  perjury,  the 
commissioner  not  being  "duly  authorized  "  by  the  statute  to  admin- 
ister an  oath  for  a  vivd  voce  examination.  R.  v.  Hanks,  3  C.  &  P. 
419,  14  E.  C.  L.  So  a  conviction  for  perjury  in  an  affidavit  used  in 
the  Court  of  Admiralty,  and  sworn  before  a  master  extraordinary  in 
chancery,  not  having  any  authority  to  administer  oaths  in  matters  be- 
fore the  Court  of  Admiralty,  was  held  to  be  bad.  R.  v.  Stone,  1 
Dears.  C.  C.  R.  251  ;  23  L.  J.,  M.  C.  14.  So  in  the  case  of  an  arbi- 
trator under  the  9&  10  Vict.  c.  95,  s.  77,  not  having  authority  to 
administer  an  oath,  false  evidence  given  before  him  is  not  the 
subject  of  perjury.  R.  v.  Hallett,  2  Den.  C.  C.  R.  237  ;  20  L.  J., 
M.  C.  197. 

Where  perjiiry  was  charged  to  have  been  committed  on  that  which 
was  in  effect  the  affidavit  on  an  interpleader  rule  ;  and  the  indictment 
set  out  the  circumstances  of  the  previous  trial,  the  verdict,  the  judg- 
ment, the  writ  of  fieri  facias,  the  levy,  the  notice  by  the  prisoner  to  the 
.sheriff  not  to  sell,  and  the  prisoner's  affidavit  that  the  goods  were  his 
property,  but  omitted  to  state  that  any  rule  was  obtained  according  to 
the  provisions  of  the  interpleader  Act :  Coleridge,  J.,  held  that  the 
indictment  was  bad,  as  the  affidavit  did  not  appear  to  be  made  on  a 

^  An  indictment  for  perjury  must  show  that  the  tribunal  had  jurisdiction.  State  v. 
Pluramer,  50  Me.  217  ;  Widen  v.  Lumley,  33  Ind.  486 ;  State  v.  Marshall,  47  Mo.  378. 
The  person  must  be  legally  authorized  to  administer  the  oath.  Morrell  v.  People, 
32  111.499.     S.  _ 

On  a  trial  for  perjury,  evidence  that  the  oath  was  administered  in  open  court  by 
one  who  was  acting  as  deputy  clerk,  is  sufficient  proof  of  his  official  character. 
Keator  v.  People,  32  Mich.  484. 


PERJURY.  1047 

judicial  proceeding :  sinee  for  anything  that  appeared  it  might 
l)ave  been  a  voluntary  oath.  R.  v.  Bishop,  Carr.  <fe  M.  302,  41 
E.  C.  U 

In  the  case  of  a  trial  talcing  place  where  the  court  has  no  juris- 
diction, a  witness  cannot  be  indicted  for  ])erjury  upon  evidence 
given  thereat.  R.  v.  Cohen,  1  Stark,  N.  P.  C.  511,  2  E.  C.  L.; 
Buxton  I'.  Gouch,  3  Salk.  2(39.  But  a  false  oath  taken  before  com- 
missioners, whose  commission  is  at  the  time  in  strictness  determined 
by  the  death  of  the  king,  is  perjury,  if  taken  before  the  commis- 
sioners had  notice  of  the  demise.  Hawk.  P.  C.  b.  1,  c.  G9,  s.  4 ;  3 
Russ.  Cri.  5,  5th  ed. 

By  the  78  sect,  of  5  &  6  Will.  4,  c.  50,  if  any  person  rides  or 
drives  furiously,  and  is  convicted  of  any  such  offence  before  two  jus- 
tices, he  shall  forfeit  a  sum  not  exceeding  five  pounds,  "in  case  such 
driver  shall  not  be  the  owner  of  such  wagon;  and  in  case  the  offender 
be  the  owner  of  such  wagon,  then  any  sum  not  exceeding  ten  pounds; 
and  in  either  of  the  said  cases,  shall,  in  default  of  payment,  be 
*committed,  etc,"  The  penalty  being  thus  confined  exclusively  r>(;oqo 
to  driving,  it  was  held  on  an  indictment  for  perjury  committed  ^ 
on  an  information  for  furiously  riding,  that  the  defendant  could  not 
be  convicted  as  the  justices  had  no  jurisdiction.  R.  v.  Bacon,  11 
Cox,  C.  C.  540,  per  Kelly,  C.  B.  It  is  submitted  that  the  justices 
liad  jurisdiction  to  hear  the  charge  even  if  the  learned  judge's 
view  of  the  statute  was  correct  as  to  their  power  to  inflict  a  pen- 
alty. 

Perjury  was  committed  before  the  magistrates  upon  the  second  ap- 
plication for  a  bastardy  order,  a  former  ap])lication  having  been  dis- 
missed on  the  merits  ;  but  it  was  held,  that  the  magistrates  had  juris- 
diction, and  the  conviction  was  good.  R.  v.  Cooke,  2  Den.  C.  C.  R. 
462;  21  L.  J.,  M.  C.  136. 

A  summons  was  granted  by  a  justice  under  the  7  &  8  Vict.  c.  101, 
and  the  8  &  9  Vict.  c.  10,  on  the  application  of  the  mother  of  a  bas- 
tard child  against  the  defendant,  as  the  putative  father,  more  than 
twelve  months  after  the  birth,  in  which  summons  it  was  alleged  that 
he  had  within  the  twelve  months  paid  money  for  the  maintenance  of 
the  child  ;  but  instead  of  alleging  that  the  mother  had  giveii  proof 
that  such  money  had  been  jiaid,  in  the  form  given  by  the  statute,  the 
summons  alleged  that  the  mother  stated  that  it  had  been  paid.  The 
defendant  appeared  in  answer  to  the  summons,  and  took  no  objection, 
either  to  the  form  of  the  summons,  or  to  the  proceedings  on  which  it 
was  founded,  but  denied  the  paternity,  and  swore  that  he  had  never 
paid  any  money  for  maintenance.  Perjury  was  assigned  on  the  latter 
statement,  and  was  fully  proved  at  the  trial ;  but  it  yvas  also  proved 
that  the  statement  by  the  mother  that-  maintenance  had  been  paid, 
upon  which  the  summons  was  issued,  was  not  made  on  oath.  It  was 
held  {dissentlenfe  Martin,  B.),  that  the  proceedings  against  the  father 
before  the  magistrate  were  civil  and  not  criminal ;  and  that  the  defect 
in  the  proceedings  was  an  irregularity  wdiich  was  capable  of  being 
and  had  been   waived    by   the   defendant ;     consequently,  that   the 


1048  PERJURY. 

jurisdiction  of  tlie  magistrates  was  well  founded,  and  the  defend- 
ant rightly  convicted  of  perjury.  R.  v.  Berry,  Bell,  C.  C.  4G  ;  28 
L.  J.,  M.  C.  70. 

So  where  a  woman  upon  oath  swore  to  the  father  of  her  child,  but 
no  deposition  in  writing  under  the  7  &  8  Vict.  c.  101,  s.  2  (now 
repealed)  was  taken,  a  summons  was  issued  and  the  defendant  ap- 
peared ;  and  it  was  held  that  by  so  appearing,  the  defendant  had 
waived  the  irregularity.  R.  v.  Fletcher,  L.  R.  1  C.  C.  R.  320 ;  40 
L.  J.,  M.  C.  1 23. 

A.  was  indicted  for  perjury  committed  before  the  justices  in  petty 
sessions  on  the  hearing  of  a  summons  in  bastardy  under  the  7  &  8 
Vict.  c.  101,  s.  2  (now  repealed).  No  evidence  had  been  given  before 
the  summoning  justices  that  the  defendant  had  ]5aid  any  money  for 
the  maintenance  of  the  child  within  twelve  months  next  after  its  birth, 
and  this  had  not  in  fact  been  done,  but  no  objection  was  taken  by  the 
defendant  before  the  magistrate  on  that  account,  though  the  summons 
was  in  the  form  given  by  the  schedule  to  the  8  &  9  Vict.  c. 
10,  alleging  such  payment  of  maintenance.  Held,  that  the  justices 
in  petty  sessions  had  jurisdiction  to  hear  the  complaint,  as  the  de- 
fendant had  waived  the  objection,  which  was  one  relating  to  matter 
of  process  only,  and  not  of  the  essence  of  the  jurisdiction  ;  and  that 
the  conviction  was  therefore  good.  li.  v.  Simmons,  Bell,  C.  C  168  ; 
28  L.  J.,  M.  C.  183. 

And  where  perjury  was  alleged  upon  the  hearing  of  an  affiliation 
*ft-iQl  *case,  and  the  information  laid  by  the  mother  was  duly  proved, 
-I  the  putative  father  having  appeared  and  evidence  having  been 
given  on  both  sides,  it  was  held,  that  he  having  so  appeared,  and  not 
having  raised  any  objection  to  the  summons,  it  was  not  necessary  to 
give  evidence  of  its  existence  at  the  trial  for  perjury.  R.  v.  Smith, 
L.  R.,  1  C.  C.  R.  110 ;  37  L.  J.,  M.  C.  6,  and  see  post,  p.  840. 

An  affidavit  of  debt,  made  under  1  &  2  Vict.  c.  101,  s.  8,  and  sworn 
before  a  registrar  of  the  court  of  bankruptcy,  is  sworn  before  a  com- 
petent authority,  and  perjury  may  be  assigned  upon  it.  R.  v.  Dunn, 
16  L.  J.,  Q.  B.  382. 

So  perjury  may  be  assigned  on  an  inquest  held  before  a  deputy  cor- 
oner, under  6  &  7  Vict.  c.  83,  s.  2,  though  objection  be  taken  that 
there  is  no  lawful  or  reasonable  cause  for  the  absence  of  the  coroner. 
R.  V.  Johnson,  L.  R.  2  C.  C.  15 ;  42  L.  J.,  M.  C.  41. 

Perjury  was  alleged  to  have  been  committed  on  the  hearing  of  an 
information  under  the  Beerhouse  and  Licensing  Act,  and  it  was  held 
that  the  beerhouse-keeper's  licence  mjist  be  produced,  otherwise  there 
was  no  proof  that  he  was  duly  licensed  so  as  to  give  the  justices  jur- 
isdiction.    R.    V.  Lewis,  12  Cox,  C.  C.  163. 

No  oath  taken  before  persons  acting  merely  in  a  private  capacity,  or 
before  those  who  take  upon  them  to  administer  oaths  of  a  public 
nature  without  legal  authority  ;  or  before  those  "who  are  authorized 
to  administer  some  oaths,  but  not  that  which  happens  to  be  taken 
before  them,  or  even  before  those  who  take  upon  them  to  administer 
justice  by  virtue  of  an  authority  seeming  colorable,  but  in  truth 


PERJURY.  1049 

void,  can  never  amount  to  perjury  in  the  eye  of  the  law,  for  they  are 
of  no  manner  of  force/  Hawk.  P,  C.  b.  1,  c.  99,  s.  4 ;  3  lluss.  Cri. 
5,  5th  ctl. 

The  antliority  by  which  the  party  is  empowered  to  administer  tlie 
oath  must,  if  specially  described,  be  proved  as  laid.  Therefore, 
where  the  indictment  stated  the  oath  to  have  been  administered  at 
the  assizes,  before  justices  assi^necZ  <o  take  the  said  assizes,  before  A. 
B.,  one  of  the  said  justices,  the  said  justices  having  then  and  there 
power,  etc.,  and  in  fact  the  judge,  when  the  oath  was  administered, 
was  sitting  under  the  commission  of  oyer  and  terminer  and  gaol  deliv- 
ery, this  was  held  to  be  a  fatal  variance.  R.  v.  Lincoln,  Kuss.  &  Ry. 
421.  But  an  indictment  for  perjury  at  the  assizes  may  allege  the 
oath  to  have  been  taken  before  one  of  the  judges  in  the  commission, 
though  the  names  of  both  appear.  E,.  v.  Alford,  1  Leach,  150.  See 
R.  V.  Coppard,  post,  p.  853. 

Where  the  justices  were  described  as  for  the  county  when  in  fact 
they  were  for  the  borough,  it  was  held  that  the  judge  had  power  to 
amend.     R.  v.  Western,  L.  R.  1  C,  C.  R.  122. 

The  14  &  15  Vict.  c.  100,  s.  20,  enacts,  ''that  in  every  indictment 
for  perjury,  etc.,  it  shall  be  sufficient  to  set  forth  the  substance  of  the 
offence  charged  upon  the  defendant,  and  by  what  court  or  before 
whom  the  oath,  affirmation,  declaration,  affidavit,  deposition,  bill, 
answer,  notice,  certificate,  or  other  writing  was  taken,  made,  signed 
or,  subscribed  without  setting  forth  the  bill,  answer,  information, 
indictment,  declaration,  or  any  part  of  any  proceeding,  either  in  law 
or  in  equity,  and  without  setting  forth  the  commission  or  authority 
of  the  court  or  person  before  whom  such  offence  was  committed."^ 

In  an  indictment  for  perjury,  intended  to  be  charged  as  having 
been  committed  in  the  course  of  the  trial  of  an  appeal  before  the  com- 
missioners of  assessed  taxes,  it  is  necessary  to  set  out  Avith  particularity 
*all  that  is  requisite  to  give  the  commissioners  jurisdiction  to    r>i:q4f\ 

try  the  appeal.  R.  v. ,  1  Cox,  C  C.  50.  So,  on  an  indict-   '- 

ment  for  perjury  alleged  to  have  been  committed  on  the  hearing  of  an 
information  under  the  Beer  Act,  11  Geo.  4  and  1  Will.  4,  c.  64,  s.  15 
(now  repealed),  before  two  justices  at  petty  sessions.  Park  and  Patte- 
son,  JJ.,  held  that  it  was  necessary  to  aver  that  the  justices  were  acting 
in  and  for  the  division  or  place  in  which  the  house  was  situate ;  but 
that  it  was  not  necessary  to  allege  they  were  acting  in  petty  session,  as 
every  meeting  of  two  justices  in  one  place  for  business  is  itself  a  petty 
session.  R.  v.  Rawlins,  8  C.  &  P.  439,  34  E.  C.  L.  An  indictment 
for  perjury  committed  before  a  magistrate,  stated  that  the  defendant 

]  State  V.  Hayward,  1  N.  &  McC.  547  ;  United  States  v.  Bailey,  9  Pet.  238  ;  ShafTer  ». 
Kintzer,  1  Binn.  542 ;  see  Chapman  v.  Gillett,  2  Conn.  40.  An  oath  administered  by 
the  clerk  of  a  court,  not  required  by  law  or  by  order  of  court,  is  extra-judicial,  and 
if  false  lavs  no  foundation  for  an  indictment  for  perjury.  United  States  ;■.  Babcock, 
4McL.  113.     S. 

Perjury  will  not  lie  for  a  false  oath  uttered  in  a  void  judicial  proceeding.  Collins 
V.  State,  78  Ala.  433.  ^ 

*  The  falsity  of  the  facts  sworn  to  by  the  accused  must  be  averred  in  the  indictment, 
or  it  is  fatally  defective.    People  v,  Clements,  42  Ilun  (N.  Y.)  353. 


1050  PERJUKY. 

went  before  a  magistrate  and  was  sworn,  and  that  being  so  sworn  he 
did  falsely,  etc.,  "  say,  depose,  swear,  cliarge,  and  give  the  said  justice 
to  be  informed,"  that  he  saw,  etc.;  it  was  held  by  the  judges  that  this 
suffieicntlv  showed  that  the  oatli  was  taken  in  a  judicial  proceeding. 
R.  V.  Gardiner,  8  C.  &  P.  737,  34  E.  C.  L. ;  2  Moo.  C.  C.  95.  In  a 
previous  case  where  the  indictment  merely  stated  that  the  defendant, 
intending  to  subject  \V.  M.  to  the  penalties  of  felony,  went  before 
two  magistrates,  and  "  did  depose  and  swear,"  etc.  (setting  out  a  depo- 
sition, which  stated  that  W.  B.  had  put  his  hand  into  the  defendant's 
pocket,  and  taken  out  a  5/.  note),  and  assigning  perjury  upon  it,  Cole- 
ridge, J.,  held  that  the  indictment  was  bad,  as  it  did  not  show  that 
any  charge  of  felony  had  been  previously  made,  or  that  the  de- 
fendants tiien  made  any  charge  of  felony,  or  that  any  judicial  pro- 
ceeding was  pending  before  the  magistrates.  R.  v.  Pearson,  8  C.  &  P. 
119,  34  E.  C.  L. 

On  an  indictment  for  perjury  before  justices  of  the  peace,  there 
must  be  formal  proof  of  the  commencement  of  the  proceedings  by 
production  of  the  summons  or  charge  book.  R.  v.  Hurrell,  3  F.  Sz  F. 
271.  Where,  however,  the  indictment  alleged  that  the  defendant  had 
been  duly  summoned,  but  did  not  aver  that  the  summons  was  pre- 
ceded by  any  information,  it  was  held  good.  R.  v.  Shaw,  L.  &  C. 
579;  34  L.  J.,  M.  C.  169.  But  where  a  warrant  was  issued,  illegally, 
because  without  a  written  information  or  oath  as  required  by  Jervis's 
Act,  11  &  12  Vict.  c.  43,  s.  8,  under  which  S.  was  arrested  and 
brought  before  justices,  and  was,  without  objection,  tried  and  convicted 
"  of  assaulting  and  obstructing  a  police-constable  in  the  discharge  of 
his  duty,"  it  was  held  that  the  police-constable  could  be  convicted  of 
perjury  committed  by  him  on  the  trial  of  S.,  on  the  ground  that  the 
justices  had  jurisdiction  to  hear  the  charge  against  S.,  although  the 
warrant  u])on  which  he  was  brought  before  them  was  illegal,  for  the 
offence  charged  was  one  which  the  magistrates  had  authority  to  try, 
and  the  defendant  being  present  in  court,  the  illegality  of  the  process 
by  which  he  was  brought  was  immaterial.  R.  v.  Hughes,  4  Q.  B.  D, 
614;  48  L.  J.,  M.  C.  151. 

An  indictment  for  perjury  alleging  that  the  defendant  had  filed  a 
petition  for  protection  from  process  in  the  county  court,  and  charging 
perjury  against  him  in  the  proceedings  consequent  upon  the  petition, 
was  held  sufficiently  to  show  the  jurisdiction  of  the  county  court,  with- 
out alleging  that  the  defendant  had  resided  for  six  months  within  the 
jurisdiction.     R.  v.  Walker,  27  L.  J.,  Q.  B.  137. 

An  information  laid  under  the  Game  Act,  the  1  &  2  Will.  4,  c.  32, 
s.  30,  and  in  pursuance  of  the  same  statute,  s.  41,  and  the  6  &  7 
Will.  4,  c.  65,  s.  9,  if  laid  by  a  person  not  deposing  on  oath  to  the 
matter  of  charge,  must  distinctly  show  that  the  charge  was  deposed 
*«41 1  *^°  ^^y  ■'^o™^  other  credible  witness  on  oath,  as  the  latter  statute 
-•  requires  that  the  charge  shall  be  deposed  to  upon  oath.  If  the 
information  leaves  this  doubtful,  all  further  proceedings  u])on  it  are 
without  jurisdiction  ;  and  if  the  defendant  is  summoned,  and  appears 
to  answer  the  charge,  a  witness  giving  false  evidence  on  the  hearing 


PERJURY.  1051 

cannot  be  convicted  of  perjurv.  R.  v.  Scotton,  5  Q.  B.  493,  48 
E.  C.  L. ;  see  also  R.  v.  Goodfellow,  Car.  &  M.  569,  41  E.  C.  L. 
But  unless  a  statute  requires  it,  an  information  need  not  be  upon  oath, 
and  therefore  under  the  24tli  section  of  the  IMalicious  Trespass  Act, 
7  &  8  Geo.  4,  c.  30  (now  repealed),  an  information  upon  oath  is  not 
requisite  in  order  to  ^ive  the  magistrates  jurisdiction.  R.  v.  INIillard, 
1  Dears.  C.  C.  R.  106;  22  L.  J.,  ]\I.  C.  108 ;  and  see  R.  v.  Hughes, 
supi-a.  If  the  information  is  in  writing,  it  must  be  produced,  or  evi- 
dence given  of  its  destruction  before  secondary  evidence  of  its  con- 
tents can  be  admitted.  R.  v.  Dillon,  14  Cox,  C.  C,  4.  It  is  not 
necessary  in  the  indictment  to  show  the  nature  of  the  authority  of  the 
party  administering  the  oath.  R.  v,  Callanan,  6  B.  &  C.  102,  13 
E.  C.  L.     See  also  R.  v.  Berry,  supra,  p.  838. 

Where  a  feme  sole  obtained  judgment  and  then  married,  and  after- 
wards took  out  a  judgment  summons  in  her  name  when  sole,  the 
judge  amended  the  summons,  striking  out  the  name  of  the  plaintiff 
on  the  record,  and  substituting  her  husband's  name  and  her  name  as 
wife.  The  defendant  swore  falsely  upon  the  hearing  of  the  sunmions. 
It  was  held,  that  the  amendment  being  without  jurisdiction,  and  there 
being  no  cause  in  the  altered  name,  a  conviction  for  perjury  could  not 
be  supported.  R.  v.  Pearce,  9  Cox,  C.  C.  258;  3  B.  &  S.  531,  113 
E.  C.  L.  The  offence  of  perjury  consists  in  taking  a  false  oath  in  a  judi- 
cial proceeding,  and  whether  the  oath  is  taken  before  a  court  of  common 
law  or  before  a  court  acting  under  a  statute  it  is  equally  an  oath  taken 
in  a  judicial  proceeding  and  punishable  with  penal  servitude.  R.  v. 
Castro,  L.  R.,  9  Q.  B.  350;  43  L.  J.,  Q.  B.  105  ;  6  Ap.  Ca.  229  ;  50 
L.  J.  (H.  L.)  497.  It  is  not  merely  before  courts  of  justice,  even  at 
common  law,  that  persons  taking  false  oaths  are  punishable  for  per- 
jury. Any  false  oath  is  punishable  as  perjury  Avhich  tends  to  mis- 
lead a  court  in  any  of  its  proceedings  relating  to  a  matter  judicially 
before  it,  though  it  in  no  way  affects  the  principal  judgment  which  is 
to  be  given  in  the  cause  ;  as  an  oath  made  by  a  person  offering  him- 
self as  bail.  And  not  only  such  oaths  as  are  taken  on  judicial  proceed- 
ings, but  also  such  as  any  way  tend  to  abuse  the  administration  of 
justice  are  properly  perjuries,  as  an  oath  before  a  justice  to  compel 
another  to  find  sureties  of  the  peace ;  before  commissioners  appointed 
by  the  king  to  inquire  into  the  forfeiture  of  his  tenants'  estates,  or 
commissioners  appointed  by  the  king  to  inquire  into  defective  titles. 
Hawk.  P.  C.  b.  1,  c.  69,  s.  3.  A  false  oath  in  any  court,  whether  of 
record  or  not,  is  indictable  for  perjury.  5  Mod.  348.  And  perjury 
may  be  assigned  upon  the  oath  against  simony,  taken  by  clergymen  at 
the  time  of  their  institution.  R.  v.  Lewis,  1  Str.  70.  A  person  may 
be  indicted  for  perjury  who  gives  false  evidence  before  a  grand  jury 
when  examined  as  a  witness  before  them  upon  a  bill  of  indictment. 
R.  V.  Hughes,  1  C.  &  K.  519,  47  E.  C.  L. 

Where  the  offence  was  stated  to  have  been  committed  upon  the 
trial  of  "a  certain  indictment  for  misdemeanor"  at  the  quarter  ses- 
sions for  the  county  of  Salop,  but  did  not  state  what  the  misdemeanor 
was,  nor  that  the  justices  had  jurisdiction,  it  ^^•as  held  that  although 


1052  PERJURY. 

it  did  not  appear  what  tlie  misdemeanor  was  upon  the  trial  of 
which  the  ])erjury  was  committed,  yet  that  the  substance  of  the 
*«401  *offcncc  upon  the  trial  for  perjury  sufficiently  appeared,  and 
-'  further  that  the  indictment  need  not  contain  an  averment  of 
competent  authority  to  administer  the  oath,  though  it  seems  such 
authority  must  be  proved  at  the  trial.  R.  v.  Dunning,  L.  R,.  1  C.  C. 
R.  290. 

A  man  may  be  indicted  for  perjury  in  an  oath  taken  by  him  in  his 
o^^^l  cause,  as  in  an  answer  in  chancery,  or  to  interrogatories  concern- 
ing a  contempt,  or  in  an  affidavit,  etc.,  as  well  as  by  an  oath  taken  by 
him  as  a  witness  in  the  cause  of  another  person.  Hawk.  P.  C.  b.  1,, 
c.  69,  s.  5. 

Perjury  cannot  be  assigned  upon  a  false  verdict,  for  jurors  are  not 
sworn  to  depose  the  truth,  but  only  to  judge  truly  of  the  depositions 
of  others.     Id. 

Where  the  prisoner  was  indicted  for  taking  a  false  oath  before  a 
surrogate  to  procure  a  marriage  licence,  being  convicted,  the  judges, 
on  a  case  reserved,  were  of  opinion  that  perjury  could  not  be  charged 
upon  an  oath  taken  before  a  surrogate*  They  were  also  of  opinion 
tliat  as  the  indictment  in  this  case  did  not  charge  that  the  defendant 
took  the  oath  to  procure  a  licence,  or  that  he  did  procure  one,  no  pun- 
ishment could  be  inflicted.  R.  v.  Foster,  Russ.  &  Ry.  459  ;  and  see 
R.  V.  Alexander,  1  Leach,  63 ;  and  see  also  1  Vent.  370,  and  the  ob- 
servations, 2  Dcac.  Dig.  C.  L.  1001.  But  a  surrogate  has  power  to 
administer  an  oath,  and  a  false  oath  taken  before  him  for  the  purpose 
of  obtaining  a  marriage  licence  is  a  misdemeanor.  R.  v.  Chapman, 
1  Den.  C.  C.  R.  432  ;  is  L.  J.,  M.  C.  152.  And  so  is  a  false  affidavit 
under  the  Bill  of  Sales  Act,  1854.  R.  v.  Hodgkiss,  L.  R.,  1  C.  C.  R, 
'212,  39  L.  J.,  M.  C.  14. 

The  object  with  which  the  oath  was  taken  need  not  be  carried  into 
'cffisct,  for  the  perjury  is  complete  at  the  moment  when  the  oath  was 
taken,  whatever  be  the  subsequent  proceedings.  Thus  Avhere  the  de- 
fendant was  indicted  for  perjury  in  an  affidavit  which  could  not,  from 
certain  defects  in  the  jurat,  be  received  in  the  court  for  Avhich  it 
was  sworn ;  Littledale,  J.,  was  of  opinion  that  nevertheless  perjury 
might  be  assigned  upon  it.  R.  v.  Hailey,  Ry.  &  Moo.  N.  P.  C.  94  ; 
1  0.  &  P.  258, 12  E.  C.  L.  So  it  was  ruled  by  Tenterden,  C.  J.,  that 
a  party  filing  a  bill  for  an  injunction,  and  making  an  affidavit  of  mat- 
ters material  to  it,  is  indictable  for  perjury  committed  in  that  affida- 
vit, though  no  motion  is  ever  made  for  an  injunction.  R.  v.  White, 
Moo.  &  M.  271. 

Perjury  cannot  be  committed  in  evidence  given  before  commission- 
ers of  bankruptcy,  where  there  was  no  good  petitioning  creditor's 
debt  to  su]iport  the  fiat.  R.  v.  Ewington,  2  ^Moo.  C.  C.  223;  s.  c. 
Car.  &  M.  319,  41  E.  C.  L. 

The  enforced  answers  of  a  bankrupt  under  examination  of  a  bank- 
ruptcy commissioner  to  questions  relating  to  matters  specified  in  sect. 
117  of  the  Bankrupt  Consolidation  Act,  1849  (now  repealed),  may 
be  given  in  evidence  by  the  prosecution  on  any  criminal  proceeding 


PEEJUEY.  1053 

against  the  bankrupt.  R.  v.  Scott,  25  L.  J.,  M.  C.  128.  And  the 
same  has  been  held  nnder  the  Bankruptcy  Act,  18C9.  See  Bank- 
ruptcy Act,  1883  (46  &  47  Vict.  c.  52),  s.  17,  and  ante,  pp.  52,  151, 
161. 

The  Naval  Discipline  Act,  23  &  24  Vict.  c.  123  (now  repealed), 
provided,  that  if  any  person  should  wilfully  and  corruptly  give  false 
evidence  upon  oath  or  affirmation,  before  any  court  martial  held 
under  that  Act,  he  should  be  liable  to  the  penalties  of  wilful  and 
corrupt  perjury.  It  has  been  doubted,  whether  an  indictment  framed 
*upon  this  Act  is  an  indictment  for  perjury  within  the  mean-  rnco^o 
ing  of  the  Vexatious  Indictments  Act,  22  &  23  Vict.  c.  17,  s.  L 
1.  R.  V.  Heane,  4  B.  &  S.  947,  116  E.  C.  L.;  33  L.  J.,  M.  C.  115. 
But  see  the  new  statute,  infra,  p.  863. 

False  swearing  before  a  local  marine  board,  under  the  17  &  18 
Vict.  c.  104,  is  perjury,  for  the  board  is  a  tribunal  invested  with  judi- 
cial powers,  and  enabled  to  inquire  on  oath  and  pass  a  sentence  alTect- 
ing  the  status  of  the  person  accused  before  it.     R.  v.  Tomlinson,  L.  R., 

1  C.  C.  R.  49. 

By  4  Geo.  4,  c.  34,  s.  2  (now  repealed),  all  complaints  which  shall 
arise  between  masters  or  mistresses  and  their  apprentices,  as  to  wages, 
etc.,  may  be  heard  and  determined  before  a  justice  of  the  peace.  After 
an  apprenticeship  was  over,  the  former  apprentice  summoned  his  late 
master  under  this  Act  for  wages  alleged  to  be  unpaid,  and  on  the  hear- 
ing swore  falsely.  It  Avas  held,  that  this  was  perjury,  inasmuch  as  the 
magistrate  had,  at  all  events,  jurisdiction  to  determine  whether  the  re- 
lation of  apprenticeship  continued  or  not.  R.  v.  Saunders,  L.  R.,  1 
C.  C.  R.  75 ;  36  L.  J.,  M.  C.  87. 

Proof  of  the  occasion  of  administering  the  oath.  The  occasion 
of  administering  the  oath  must  be  proved  as  stated.  Thus,  if  the 
perjury  were  committed  on  the  trial  of  a  cause  of  nisi  prius,  the 
record  must  be  produced  in  order  to  show  that  such  a  trial  was  had  : 

2  Stark.  Ev.  622,  2ud  ed. ;  and  for  this  purpose  the  nisi  prius  record 
was  held  sufficient.^  R.  v.  lies.  Cases  temp.  Hardw.  118,  see  j).  170. 
Upon  the  trial  of  an  indictment  for  perjury  alleged  to  have  been  com- 
mitted on  the  hearing  of  an  action  in  the  Hight  Court  of  Justice,  the 
production  by  the  officer  of  the  Court  of  the  copy  of  the  writ  filed 
under  Order  V.,  rule  1,  now  34  (although  not  signed  according  to  the 
rule),  and  the  copy  of  the  pleadings  filed  under  Order  XLI,,  rule  1, 
now  569,  is  sufficient  evidence  that  the  action  existed.  Reg.  v.  Scott, 
2  Q.  B.  D.  415;  46  L.  J.,  M.  C.  259.  The  occasion,  and  the  parties 
before  whom  it  came  on  to  be  tried,  must  be  correctly  stated.  Where 
it  was  averred  that  a  cause  came  on  to  be  tried  before  Lloyd,  Lord 
Kenyon,  etc.,  William  Jones  being  associated,  etc.,  and  it  appeared  that 

^  Kesp.  V.  Goss  et  al.,  2  Yeates,  479.  At  common  law  when  the  oath  was  in  a  court, 
the  pleadings,  proceedings  and  evidence  must  be  set  forth.  State  v.  Stillman,  7  Cold. 
341.     S. 

On  an  indictment  for  perjury  in  making  an  affidavit,  the  State  and  county  given 
therein  as  the  venue,  are  prima  facie  evidence  that  the  oath  was  administered  in  the 
county  named  in  the  venue.    Van  Dusen  v.  People,  78  111.  645. 


1054  PERJURY. 

Roger  Kenyon  was  associated,  this  was  ruled  a  fatal  varlanco.  R.  v. 
Eden,  1  Esp.  97.  See  also  R.  v.  Eellowes,  1  C.  &  K.  115,  47  E.  C.  L. 
But  where  an  indictment  alleged  that  the  trial  of  an  issue  took  place  be- 
fore E.,  sheriff  of  D.,  by  virtue  of  a  writ  directed  to  the  said  sheriff; 
and  the  ^vritof  trial  put  in  evidence  was  directed  to  the  sheriif,  and  the 
return  was  of  a  trial  before  him,  but  in  fact  the  trial  took  place  before 
a  deputy,  not  the  under-sheriff,  it  was  held  no  variance.  11.  v.  Dunn, 
2  Moo.  C.  C.  297  ;  1  C.  &  K.  730,  47  E.  C.  L. 

Perjury  could  not  be  assigned  upon  an  affidavit  sworn  in  the  insol- 
vent debtors'  court  by  an  insolvent  respecting  the  state  of  his  prop- 
erty and  his  expenditure,  for  the  purpose  of  obtaining  an  extended 
time  to  petition  under  the  10th  section  of  iha  7  Geo.  4,  c.  57  (now 
repealed),  without  proving  that  the  court  by  its  practice  required  such 
an  affidavit.  And  such  proof  is  not  given  by  an  officer  of  the  court 
producing  printed  rules,  purporting  to  be  rules  of  the  court,  which 
he  has  obtained  from  the  clerk  of  the  rules,  and  is  in  the  habit  of  de- 
livering out  as  rules  of  the  court,  but  which  are  not  otherwise  shown 
to  be  the  rules  of  the  court,  the  officer  professing  to  have  no  knowledge 
of  the  practice,  except  from  such  printed  rules.  R.  v.  Koops,  6  Ad. 
*«4.41  ^  -^*  ^^^y  33  E.  C.  L.  Tenterden,  C.  J.,  held  that  an  *indict- 
-J  ment  for  perjury  would  not  lie  under  the  71st  section  of  7 
Geo.  4,  c.  57  (now  repealed),  against  an  insolvent  debtor  for  omissions 
of  property  in  his  schedule,  such  offence  being  made  liable  to  punish- 
ment under  the  70th  section  as  a  substantive  misdemeanor.  R.  v. 
Mudie,  1  Moo.  &  R.  128.^ 

Proof  of  the  taking  of  the  oath.  It  is  sufficient  in  the  indictment  to 
state  that  the  defendant  duly  took  the  oath.^  R.  v.  M'Arthur,  Peake, 
N.  P.  C.  1 55.  But  where  it  was  averred  that  he  was  sicorn  on  the 
Gosioeh,  and  it  appeared  that  he  had  been  sworn  according  to  the 
custom  of  his  own  country  without  kissing  the  book,  it  was  held 
a  fatal  variance,  though  the  averment  was  afterwards  proved  by 
its  appearing  that  he  was  previously  sworn  in  the  ordinary  man- 
ner.    Id.  . 

The  mode  of  proving  that  the  defendant  was  sworn,  in  an  indict- 
ment for  perjury  in  an  answer  in  chancery,  is  by  producing  the  origi- 
nal answer  signed  by  him,  and  proving  his  handwriting,  and  that  of 

^  Eesp.  r.  Newell,  3  Y.  414.  In  a  trial  before  a  justice  of  the  peace,  if  the  plaintiff 
offer  himself  as  a  witness,  is  sworn  and  testifies  falsely,  perjury  may  be  assigned  on 
the  oath  thus  taken.  Montgomery  v.  State,  10  O.  220.  It  is  perjury  to  swear  falsely 
in  an  affidavit  for  continuance  that  a  witness  is  out  of  the  vState.  State  v.  Shupe,  16 
la.  36.  So  in  a  naturalization  affidavit  made  out  of  court.  State  v.  Whittemore,  50 
N.  II.  245.  A  prosecution  for  perjury  alleged  to  have  been  committed  in  an  aflidavit 
of  defence  in  a  civil  action,  cannot  be  instituted  until  after  final  judgment  therein. 
Commonwealth  v.  Dickinson,  3  Clark,  265.     S. 

'^  Eesp.  V.  Newell,  3  Y.  414.  An  indictment  for  perjury,  alleging  that  the  respon- 
dent was  sworn  and  took  her  corporal  oath  to  speak  the  trutli,  the  whole  truth,  etc., 
was  holden  to  be  sustained  by  evidence  of  the  rath  taken  with  uplifted  hand.  State 
V.  Norris,  9  N.  H.  96.  In  perjury,  it  is  unnecessary  to  set  out  the  particular  mode  in 
which  the  defendant  was  sworn.  Tuttle  i'.  People,  36  N.  Y.  431 ;  Beems  v.  People,  59 
Barb.  531.    S. 


PERJURY.  1055 

the  master  in  cliancery  to  the  jurat,  together  with  proof  of  the 
identity  of  the  defendant.  R.  v.  Morris,  1  Leach,  50 ;  2  Burr. 
1189  ;  R.  V.  Benson,  2  Campb.  507.  Tiie  making  of  an  affidavit 
is  proved  in  the  same  manner  by  production  and  proof  of  tlie  hand- 
writing. The  whole  affidavit  must  be  produced.  R.  v.  Hudson,  1  F. 
&  F.  56. 

The  form  of  the  oath  as  stated  in  the  indictment  was  that  the 
prisoner  should  speak  "  the  truth,  the  whole  truth,  and  nothing  but 
the  truth,"  and  it  was  proved  to  have  been  administered  in  the 
form  that  the  prisoner  should  "  true  answer  make."  Watson,  B., 
held,  that  this  was  not  a  material  variance.  R.  v.  Southwood,  1  F.  & 
F.  35G. 

Where  the  affidavit  upon  which  the  perjury  was  assigned  was  signed 
only  witli  the  mark  of  the  defendant,  and  the  jurat  did  not  state  that 
the  affidavit  was  read  over  to  the  party,  Littledale,  J.,  said,  "  As  the 
defendant  is  illiterate,  it  must  be  shown  that  she  understood  the  affi- 
davit. Where  the  affidavit  is  made  by  a  person  who  can  write,  the 
supposition  is  that  such  person  is  acquainted  with  its  contents,  but  in 
the  case  of  a  marksman  it  is  not  so.  If  in  such  a  case  a  master  by 
the  jurat  authenticates  the  fact  of  its  having  been  read  over,  Ave  give 
him  credit,  but  if  not,  he  ought  to  be  called  upon  to  prove  it.  I 
should  have  difficulty  in  allowing  the  parol  evidence  of  any  other 
person."  R.  v.  Hailey,  1  C.  &P.  258,  12  E.  C.L.;  Ry.&  Moo.  94. 

It  is  incumbent  upon  the  prosecutor  to  give  precise  and  positive 
proof  that  the  defendant  was  the  person  who  took  the  oath.  R.  v. 
Brady,  1  Leach,  327  ;  but  this  rule  must  not  be  taken  to  exclude  cir- 
cumstantial evidence.  R.  v.  Price,  6  East,  323 ;  2  Stark.  Ev.  624, 
2nd  ed. 

It  must  appear  that  the  oath  was  taken  in  the  county  where  the 
venue  is  laid  ;  and  the  recital  in  the  jurat  of  the  place  where  the 
oath  is  administered,  is  sufficient  evidence  that  it  was  administered  at 
the  place  named.  R.  v.  Spencer,  Ry.  &  Moo.  N.  P.  C.  98.  But 
though  the  jurat  state  the  oath  to  be  taken  in  one  county,  the  prose- 
cutor may  show  that  it  was  in  fact  taken  in  another.  R.  v.  Emden,  9 
East,  437. 

The  making  of  a  false  affirmation  by  a  Quaker  or  Moravian  must 
be  proved  in  the  same  manner  as  the  taking  of  a  false  oath.  The 
22  Geo.  2,  c.  46,  s.  36  (now  repealed),  9  Geo.  4,  c.  32  (now  repealed), 
*3  &  4  Will.  4,  c.  49,  3  &  4  Will.  4,  c.  82,  and  1  &  2  Vict.  c.  ^g^^ 
77,  which  admit  the  evidence  of  Quakers,  Moravians,  and  Sep-  *- 
aratists,  in  all  cases  whatsoever,  criminal  or  civil,  contain  clauses  sub- 
jecting such  persons  making  false  affirmations  [subject]  to  the  penal- 
ties of  perjury  ;  and  there  are  various  other  statutes  to  a  similar 
effect. 

The  17  &  18  Vict.  c.  125,  s.  20,  enacts,  that  "if  any  person 
called  as  a  witness  or  required  or  desiring  to  make  an  affidavit  or 
deposition  shall  refuse  or  be  unwilling  from  alleged  conscientious 
motives  to  be  sworn,  it  shall  be  lawful  for  the  court,  or  judge  or  other 
presiding   officer  or  person  qualified  to  take  affidavits  or  depositions, 


1056  PERJURY. 

upon  being  satisfied  of  the  sincerity  of  such  objections,  to  permit 
sucli  person  instead  of  being  sworn  to  make  his  or  her  solemn  affir- 
mation," etc. 

And  by  sect.  21,  "  if  any  person  making  such  solemn  affirmation 
or  declaration,  shall  wilfully,  falsely,  and  corruptly  affirm  or  declare 
any  matter  or  thing  which,  if  the  same  had  been  sworn  in  the  usual 
form,  would  have  amounted  to  wilful  and  corrupt  perjury,  every  such 
person  so  offending  shall  incur  the  same  penalties  as  by  the  laws  and 
statutes  of  this  kingdom  are  or  may  be  enacted  or  provided  against 
persons  convicted  of  wilful  and  corrupt  pcrjiuy."  This  is  extended 
to  criminal  proceedings  by  24  &  25  Vict.  c.  (36,  s.  1,  ante,  p.  123. 

Although  the  taking  of  a  false  oath  required  by  statute  is  a  misde- 
meanor, it  is  not  perjury,  unless  made  so  by  the  statute.  R.  v.  Mudie, 
ante,  p,  844,  and  R.  v.  Chapman,  ante,  p.  842  ;  and  see  R.  v.  De  Beau- 
voir,  7  C.  &  P.  1 7,  32  E.  C.  L. ;  and  see  also  R.  v.  Harris,  Id.  253 ; 
and  R.  v.  Dodsworth,  8  C.  &  P.  218,  34  E.,C.  L.;  as  to  giving  false 
answers  at  an  election. 

By  the  5  &  6  Will.  4,  c.  02,  abolishing  unnecessary  oaths  (see  ante, 
p.  490),  and  substituting  declarations  in  lieu  thereof  (but  which,  by 
s.  9,  does  not  extend  to  proceedings  in  courts  of  justice,  or  before  jus- 
tices of  the  peace),  persons  making  false  declarations  shall  (s.  21)  be 
guilty  of  a  misdemeanor. 

Proof  of  the  substance  of  the  oath.  In  proving  the  substance  of 
the  oath,  or  the  matter  sworn  to  by  the  defendant,  it  was  long  a  ques- 
tion how  far  it  was  incumbent  on  the  prosecutor  to  prove  the  whole  of 
the  defendant's  statement  relative  to  the  same  subject-matter,  as  where 
he  has  been  both  examined  and  cross-examined  ;  or  whether  it  was 
sufficient  for  him  merely  to  prove  so  much  of  the  substance  of  the 
oath  as  was  set  out  on  the  record,  leaving  it  to  the  defendant  to  prove 
any  other  part  of  the  evidence  given  by  him,  which  qualified  or  ex- 
plained the  part  set  out.  Thus  Lord  Kenyon  ruled,  that  the  whole 
of  the  defendant's  evidence  on  the  former  trial  should  be  proved,  for 
if  in  one  part  of  his  evidence  he  corrected  any  mistake  he  had  made 
in  another  part,  it  would  not  be  perjurv.  R.  v.  Jones,  Peake,  N.  P. 
C.  38;  see  also  R.  v.  Dowlin,  Id.  227";  2  Chittv,  C.  L.  312,  2nd 
ed.;  5  T.  R.  311  ;  Anon.  cor.  Lord  Gifford,  cited  Ry.  &  Moo.  N. 
P.  C.  300,  but  the  better  opinion  seems  to  the  contrary,  see  infra, 
p.  848. 

It  was  formerly  thought  that  an  oath  did  not  amount  to  perjury 
unless  sworn  in  absolute  and  direct  terms,  and  that  if  a  man  swore 
according  as  he  thought,  remembered,  or  believed  only,  he  could  not  be 
convicted  of  perjury.  3  Inst.  166.  But  the  modern  doctrine  is 
otherwise.  It  is  said  by  Lord  Mansfield  to  be  certainly  true,  that  a 
man  may  be  indicted  for  perjury  in  swearing  that  he  believes  a  fact  to 
*8461  *^^®  *''"^'  which  he  knows  to  be  false;  R.  v.  Pedley,  1  Leach, 
-'  327.  The  difficulty,  if  any,  is  in  the  proof  of  the  assignment.^ 
R.  V.  Schlesinger,  10  Q.  B.  670 ;  17  L.  J.,  M.  C.  29. 
*  Commonwealth  v,  Cornish,  6  Binn.  249.    S. 


PERJURY.  1057 

So  perjury  may  be  committed  by  swearing  to  a  statement  which  in 
one  sense  is  true,  but  which,  in  the  sense  intended  to  be  impressed  by 
the  party  swearing,  is  false,  as  in  a  case  mentioned  by  Lord  Mansfield. 
The  witness  swore  that  he  left,  the  party,  whose  health  was  in  question, 
in  such  a  way  that  were  he  to  go  on  as  he  then  was,  he  would  not  live 
two  hours.  It  afterwards  turned  out  that  the  man  was  very  well,  but 
had  got  a  bottle  of  gin  to  his  mouth,  and  true  it  was,  in  a  sense  of 
equivocation,  that  had  he  continued  to  pour  the  liquor  down,  he  would 
in  much  less  time  than  two  hours  have  been  a  dead  man.  LofFt's 
Gilb.  Ev.  662. 

No  case  appears  to  hav^e  occurred  in  our  law  of  an  indictment  for 
perjury  for  mere  matter  of  opinion.  The  following  observations  on 
this  subject  are  from  the  pages  of  an  eminent  writer  on  the  criminal 
law  of  Scotland. 

If  the  matter  sworn  to  be  one  of  opinion  only,  as  a  medical  opinion, 
it  cannot  in  the  general  case  be  made  the  foundation  of  a  prosecution 
for  perjury.  But  though  a  medical  or  scientific  opinion  cannot  in 
general  be  challenged  as  perjury,  because  the  uncertainty  and  division 
of  opinion  in  the  medical  profession  is  proverbial  ;  yet,  if  it  assert  a 
fact  or  draw  an  inference  evidently  false,  as  for  example,  if  a  medical 
attendant  swear  that  a  person  is  unfit  to  travel  who  is  in  perfect 
health,  or  an  architect  shall  declare  a  tenement  to  be  ruined,  which 
is  in  good  condition,  certainly  the  gross  falsehood  of  such  an  assertion 
shall  in  neither  case  be  protected  by  the  plea  that  it  related  to  a 
matter  of  professional  investigation.  Alison,  Prin.  Cr.  Law  of  Scotl. 
468. 

In  R.  V.  Stolady,  1  F.  &  F.  518,  Pollock,  C.  B.,  said  that  it  was 
not  a  sufficiently  precise  allegation  whereon  to  found  an  indictment  for 
perjury,  that  the  prisoner  swore  that  a  certain  event  did  not  happen 
between  two  fixed  dates ;  his  attention  not  having  been  called  to  the 
particular  day  on  which  the  transaction  did  take  place. 

A  doubt  may  arise,  whether  a  witness  can  be  convicted  of  perjury, 
in  answer  to  a  question  which  he  could  not  legally  be.  called  upon  to 
answer,  but  which  is  material  to  the  point  in  issue.  In  Scotland 
it  has  been  held,  that  a  conviction  for  perjury  in  such  case  cannot 
be  maintained.  Speaking  of  the  general  rule,  that,  where  the  matter 
is  pertinent  to  the  issue,  the  party  taking  a  false  oath  will  be  guilty 
of  perjury,  Mr.  Alison  says,  "  There  is  one  exception,  however,  to 
this  rule,  where  the  matter  on  which  the  perjury  was  alleged 
to  have  been  committed  was  such,  as  it  was  not  competent  to 
examine  the  witness  upon,  however  material  to  the  issue ;  for 
law  cannot  lend  the  terrors  of  its  punishment  to  protect  a  party 
in  pursuing  an  incompetent  and  illegal  train  of  investigation.  On 
this  ground  it  was,  that  the  decision  went,  in  the  case  of  Patrick 
M'Curly,  4th  August,  1777,  who  had  been  precognosced  with  a  view 
to  a  criminal  trial,  and,  afterwards,  as  often  happens,  had  given  a 
different  account  of  the  matter  on  the  trial  itself.  Towards  the  close 
of  his  deposition,  he  was  asked  whether  he  had  ever  given  a  difierent 
account  of  the  matter,  and  he  swore  he  had  not.  Upon  this  last 
67 


1058  PERJURY. 

falsehood  he  was  indicted  for  perjury  ;  and  after  a  debate  on  tlie 
relevancy  the  prosecntor  abandoned  the  cliarge  ;  nor,  in  truth,  does 
it  seem  possible  to  maintain  an  indictment  for  perjury  in  such  a 
*R4.71  *^'^''^^5  where  the  question  was  clearly  incompetent,  and  the  wit- 
-•  ness  would  have  been  entitled  to  decline  answering;  it."  Prin, 
Crim.  Law.  Scot.  470,  but  see  R.  v.  Gibbon,  post,  p.  851. 

Where  on  an  indictment  for  perjury  upon  the  trial  of  an  action,  it 
appeared  that  the  evidence  given  on  that  trial  by  the  defendant  con- 
tained all  the  matter  charged   as   perjury,  but  other  statements,  not 
varying  the  sense  intervened  between  the  matters  set  out,  Abbott,  C. 
J.,  held  the  omission  inuuaterial,  since  the  effect  of  what  was  stated 
was  not  varied.     R.  v.  Solomon,  Ry.  &  Moo.  N.  P.  C.  252.     So  where 
perjury  was  assigned  upon  several  parts  of  an   affidavit,  it  was   held 
that  those  parts  might  be  set  out  in  the  indictment  as  if  continuous, 
although  they  were   in   fact  separated   by  the   introduction  of  other 
matter.     R.  v.  Callanan,  6  B.  &  C.  102,  13  E.  C.  L.     It  seems  that 
where  the  indictment  sets  forth  the  substance  and  effect  of  the  matters 
sworn,  it  must  be  proved,  that  in  substance  and  eflect  the   defendant 
swore  the  whole  of  what  is  thus  set  forth  as  his  evidence,  although  the 
count  contains  several  distinct  assignments  of  perjury.     R.  v.  Leef,  2 
Camp.  134  ;    4  B.  &  C.   852,    10  E.  C.  L.     Where  the  indictment 
charged   that  the  defendant  in  substance  and  effect  swore,  etc.,  and  it 
appeared  that  the  deposition  was  made  by  him  and  his  wife  jointly,  he 
following  up  the  statement  of  the  wife,  it  was  held  to  be  no  variance. 
R.  V.  Grendall,  2  C.  &P.  563,  12  E.  C.  L.     An  indictment  for  per- 
jury alleged  to  have  been  committed  in  an  affidavit  sworn  before  the 
commissioner  of  the  court  of  Chancery  stated  that  a  commission   of 
bankruptcy  issued  against  the  defendant,  under  which   he  was  duly 
declared  a  bankrupt.     It  then  stated,  that  the  defendant  preferred  his 
petition  to  the   Lord   Chancellor,  setting   forth  various  matters,  and 
amongst  others,  the  issuing  of  the  commission,  that  the  petitioner  was 
declared  a  bankrupt,  and  that  his   estate  was  seized   under  the  com- 
mission, and  tliat,  at  the  second  meeting,  one  A.  B.  Avas  appointed 
assignee,  and  an  assignment  made  to  him,  and  that  he  possessed  him- 
self of  the  estate  and  effects  of  the  petitioner.     It  then  stated,  that  at 
the  several  meetings  before  the  commission,  the  petitioner  declared 
openly,  and  in  the  presence  and  hearing  of  the  said  assignee,  to  a  cer- 
tain effect.     At  the  trial  the  petition  was  produced,  and  it  appeared 
that  the  allegation  was,  that  at  the  several  meetings   before  the  com- 
missioners the  petitioner  declared  to  that  effect.     It  was  held  that  this 
was  no  variance,  inasmuch  as  it  was  sufficient  to  set  out  in  the  indict- 
ment the  petition  in  substance  and  effect,  and  the  word  "  commission  " 
was  one  of  equivocal  meaning,  and  used  to  denote  either  a  trust  or 
authority  exercised,  or  the  persons  by  whom  the  trust  or  authority 
was  exercised,  and  that  it  sufficiently  appeared,  from  the  context  of 
the  petition  set  forth  in  the  indictment,  that  it   was  used  in  the  latter 
sense.     R.  v.  Dudman,  4  B.  <fe  C.  850,  10  E.  C.  L.     Where  the 
indictment  professes  to  set  out  the  substance  and  effect  of  the  mat- 
ter sworn  to,  and    in  the  deposition  a  word    is    omitted,  which  is 


PERJURY.  1059 

supplied  in  the  setting  fortli  of  the  deposition  In  the  indictment,  this 
is  fatal  variance  ;  the  proper  mode  in  such  cases  is,  to  set  forth 
the  deposition  as  it  really  is,  and  to  supply  the  sense  by  an 
innuendo.  II.  v.  Taylor,  1  Camp.  404.  And  where  the  indictment, 
in  setting  out  the  substance  and  effect  of  the  bill  in  equity  upon  the 
answer  to  which  the  perjury  was  assigned,  stated  an  agreement 
between  the  prosecutor  and  the  defendant  respecting  houses,  and 
upon  the  original  bill  being  read,  it  appeared  that  the  word  Avas 
house  (in  the  singular  number),  Abbott,  C.  J.,  said,  "The  indictment 
*professes  to  describe  the  substance  and  effect  of  this  bill ;  it  r^o^io 
does  not,  certainly,  profess  to  set  out  the  tenor,  but  this  I  think  L 
is  a  difference  in  substance,  and  consequently  a  fatal  variance."  R.  v. 
Spencer,  Ry.  &  Moo.  N.  P.  C.  98. 

The  omission  of  a  letter,  in  setting  out  the  affidavit  on  which  per- 
jury is  assigned  will  not  be  material,  if  the  sense  is  not  altered 
thereby,  as  under  tood  for  understood.  Although  it  be  under  an  aver- 
ment "  to  the  tenor  and  effect  following.''  R.  v.  Beech,  1  Leach,  133; 
Cowp.  229. 

In  a  late  case,  where  the  witness  stated,  that  he  could  not  undertake 
to  say  that  he  had  given  the  whole  of  the  prisoner's  testimony,  but  to 
the  best  of  his  recollection  he  had  given  all  that  was  material  to  the 
inquiry,  and  relating  to  the  transaction  in  question,  Littledale,  J., 
thought  that  this  evidence  was  prima  facie  sufficient,  and  that  if  there 
was  anything  else  material  sworn  by  the  prisoner  on  the  former  trial,  he 
might  prove  it  on  his  part.  No  such  evidence  having  been  given,  the 
prisoner  was  convicted,  and  on  a  case  reserved  the  judges  held  that 
the  proof  was  sufficient  for  the  jury,  and  that  the  conviction  was  right. 
R.  u.  Rowley,  Ry.  &  Moo.  N.  P.  C.  299;  1  Moody,  C.  C.  111.^ 
Where  it  has  once  been  proved,  says  Mr.  Starkie,  that  particular  facts 
positively  and  deliberately  sworn  to,  by  the  defendant,  in  any  part  of 
his  evidence,  were  falsely  sworn  to,  it  seems  in  principle  to  be  incum- 
bent on  him  to  prove,  if  he  can,  that  in  other  parts  of  his  testimony 
he  explained  or  qualified  that  which  he  had  sworn  to.  2  Stark.  Ev.  625, 
2nd  ed. 

The  defendant,  although  perjury  be  assigned  on  his  answer,  depo- 
sition, or  affidavit  in  writing,  may  prove  that  an  explanation  was  after- 
wards given,  qualifying  or  limiting  the  first  answer.  2  Stark.  Ev. 
627,  2nd  ed.;  3  Russ.  Cri.  83,  5th  ed.;  R.  v.  Car,  Sid.  418.  And  if 
it  appear,  on  the  evidence  for  the  prosecution,  that  a  part  of  the  de- 
fendant's statement,  qualifying  the  rest,  is  omitted,  the  judge  will  not 
suffer  the  case  to  go  to  the  jury.  The  defendant  had  paid  a  bill  for  a 
Mr.  Shipley,  and  summoned  a  party  named  Watson,  to  whom  he  had 
paid  it,  before  the  court  of  requests  for  an  overcharge.  The  defendant 
was  asked  whether  Watson  M^as  indebted  to  him  in  the  sum  of  lis.; 
he  answered,  "He  is."     On  the  question  being  repeated,  and  the  wit- 

'  On  trial  of  one  accused  of  perjury  it  is  not  necessary  to  prove  the  exact  words 
used  by  the  prisoner  in  giving  the  false  testimony.  It  is  sufficient  to  prove  sub- 
stantially what  he  said.  Taylor  v.  State,  48  Ala.  157.  Compare  Commonwealth  v, 
Butland,  119  Mass.  317. 


lOGO  PERJURY. 

ncss  required  to  recollect  himself,  he  snbjoincfl,  "as  agent  for  Mr. 
Sliipley."  Pie  was  indicted  for  perjury  upon  his  first  answer  only, 
but  it  appearing  upon  the  case  for  the  piosecution  that  he  had  qualified 
that  answer,  Nares,  J.,  refused  to  permit  the  case  to  go  to  the  jury, 
observing  that  it  was  perjury  assigned  on  part  only  of  an  oath,  the 
most  material  part  being  purposely  kept  back.  R.  v.  Hurry,  1  Lofft's 
Gilb.  Ev.  57. 

Upon  a  trial  for  an  indecent  assault,  the  woman  having  sworn  to 
the  assault,  admitted  upon  cross-examination  that  what  Avas  done  was 
done  with  her  consent,  and  thereupon  no  other  witnesses  were  called, 
and  the  court  directed  an  acquittal.  The  person  charged  with  the 
assault  denied  that  the  transaction  had  taken  place  at  all  wdth  or 
without  the  woman's  consent,  and  indicted  her  for  perjury.  She 
was  allowed  in  her  defence  to  call  as  witnesses  all  those  who  might 
have  been  called  upon  the  former  trial.  R.  v.  Harrison,  9  Cox,  C. 
C.  503. 

On  the  trial  of  an  indictment  for  perjuiy  alleged  to  have  been 
committed  before  a  magistrate,  the  written  deposition  of  the  de- 
fendant taken  down  by  the  magistrate  was  put  in  to  prove  what  he 
*S4Q1  *^^^^^^  swore,  and  it  was  proposed  to  call  the  attorney  for  the 
-I  prosecution  to  prove  some  other  matters  sworn  to  by  the  de- 
fendant, which  were  not  mentioned  in  the  depositions ;  Parke,  J., 
held  that  this  could  not  be  done.  R.  v.  Wylde,  6  C.  &  P.  383,  25  E. 
C.  L.     See  ante,  p.  68.^ 

Proof  of  the  materiality  of  the  matter  sworn.  It  must  either  ap- 
pear on  the  face  of  the  facts  set  forth  in  the  indictment  that  the  mat- 
ter sworn  to,  and  upon  which  the  perjury  is  assigned,  was  material,  or 
there  must  be  an  express  averment  to  that  effect.^  R.  v.  Dowlin,  5 
T.  R.  311  ;  Peake,  K  P.  227 ;  R.  v.  Nicholl,  1  B.  &  Ad.  21,  20  E. 
C  L. ;  R.  V.  M'Keron,  3  Russ.  Cri.  57,  5th  ed.  An  express  averment 
that  a  question  was  material  lets  in  evidence  to  prove  that  it  was  so. 
R.  V.  Bennett,  2  Den.  C.  C.  R.  240  ;  20  L.  J.,  M.  C.  217.  Where, 
upon  an  indictment  for  perjury  committed  in  an  answer  in  chancery, 

1  But  see  People  v.  Curtis,  50  Cal.  95. 

''  Where  three  or  more  persons  were  alleged  to  be  jointly  concerned  in  an  assault, 
and  it  was  contended  to  be  immaterial,  if  all  participated  in  it,  by  which  of  them 
certain  acts  were  done,  held  to  be  material,  and  that  evidence  as  to  the  acts  of  either, 
if  wilfully  and  falsely  given,  constituted  peijury.  State  v.  Norris,  9  N.  H.  96.  Per- 
jury may  be  committed  by  wilfully  false  swearing  in  a  point  which  is  only  circumstan- 
tially material  to  the  question  in  dispute.  Commonwealth  r.  Pollard,  12  Mete.  225. 
Wlien  a  party  is  indicted  for  perjury  in  giving  testimony  on  the  trial  of  an  issue  in 
court,  proof  that  his  testimony  was  admitted  on  that  trial  is  not  sufficient  to  warrant 
the  jury  to  infer  that  it  was  material.     Id. 

An  indictment  for  peijury  must  show  conclusively  that  the  testimony  given  by  the 
defendant  was  material  to  the  issue.  State  ".Thrift,  30  Ind.  211  ;  State  v.  Chandler, 
42  Vt.  446 ;  United  States  v.  McHenry,  6  Blateli.  C.  C.  503  ;  Gibson  v.  State,  44  Ala. 
17  ;  Pland  v.  State,  Id.  81.  [A  false  answer  to  an  immaterial  question  is  not  perjury. 
Banks  r.  State,  78  Ala.  14.  Nor  the  denial  of  the  execution  of  a  defective  paper. 
CommonweaUh  v.  Kupple,  1  County  Ct.  Eep.  ( Pa.)  663.]     But  see  State  v.  Sleeper,  37 

Commonwealth  v.  Butland,  119  Maiis,  317 ;  Pollard  v.  People,  69  111.  148. 


PERJURY.  1061 

the  perjury  M'as  assigned  in  the  defendant's  denial,  in  the  answer,  of 
his  having  agreed,  upon  forming  an  insnranee  company,  of  which  he 
^vas  a  director,  etc.,  to  advance  10,000/.  for  three  years,  to  answer  any 
imm.ediate  calls,  and  there  was  no  averment  that  this  was  material,  nor 
did  It  appear  for  what  purpose  the  bill  was  fded  nor  what  was  prayed; 
the  judgment  was  arrasted.  li.  r.  Bignold,  3  Russ.  Cri.  57,  58,  5th 
ed.  So  perjury  cannot  be  assigned  on  an  answer  in  chancery,  denying 
a  promise  absolutely  void  by  the  statute  of  frauds.  R.  v.  Benesech, 
Peako's  Add.  Cases,  93. 

The  materialty  of  the  matter  sworn  to  must  depend  upon  the  state 
of  the  cause,  and  the  nature  of  the  question  in  issue.  If  the  oath  is 
altogether  foreign  from  the  purpose,  not  tending  to  aggravate  or  exten- 
uate the  damages,  nor  likely  to  induce  the  jury  to  give  a  readier  credit 
to  the  substantial  part  of  the  evidence,  it  cannot  amount  to  perjury. 
As  if  upon  a  trial  in  which  the  issue  is,  whether  such  a  one  is  compos 
or  not,  a  witness  introduces  his  evidence  by  giving  an  account  of  a 
journey  which  he  took  to  see  the  party,  and  swears  falsely  in  relation 
to  some  of  the  circumstances  of  the  journey.  So  where  a  witness 
Avas  asked  by  a  jndge,  whether  he  brought  a  certain  number  of  sheep 
from  one  town  to  another  altogether,  and  answered  that  he  did  so, 
whereas  in  truth  he  did  not  bring  them  altogether,  but  part  at  one 
time  and  part  at  another,  yet  he  was  not  guilty  of  perjury,  because 
the  substance  of  the  question  was,  whether  he  brought  them  all  or 
not,  and  the  manner  of  bringing  was  only  circumstance.  (2  Rolle, 
41,  369.)  Upon  the  j^ame  grouud  it  is  said  to  have  been  adjudged, 
that  where  a  witness  being  asked,  whether  such  a  sum  of  money 
was  paid  for  two  things  in  controversy  between  the  parties,  answered, 
it  was,  when  in  truth  it  was  only  paid  for  one  of  them  by  agree- 
ment, such  witness  ought  not  to  be  punished  for  perjury,  because 
as  the  case  was,  it  was  no  ways  material  whether  it  was  for  one 
or  for  both.  (2  RoUe,  42.)  Also  it  is  said  to  have  been  resolved, 
that  a  witness  who  swore  that  one  drew  his  dagger,  and  beat  and 
wounded  J.  S.,  when  in  truth  he  beat  hiau  with  a  staff,  was  not  guilty 
of  perjury,  because  the  beating  only  was  material.  (Hetley,  95.) 
Hawk.  P.  C.  b.  1,  c.  69,  s.  8. 

After  stating  these  authorities,  Mr.  Serjeant  Hawkins  observes, 
that  perhaps  in  all  these  cases  it  ought  to  be  intended  that  the  ques- 
tion was  put  in  such  a  manner,  that  the  witness  might  reasonably 
apprehend  that  the  sole  design  of  putting  it  was  to  be  informed  of 
the  substantial  part  of  it,  which  might  induce  him,  through  inad- 
vertency, to  take  no  notice  of  the  circumstantial  part,  and  give  a 
*general  answer  to  the  substantial ;  for  otherwise,  if  it  appear  r^osrv 
plainly  that  the  scope  of  the  question  was  to  sift  him  as  to  his  ^ 
knowledge  of  the  substance,  by  examining  him  strictly  as  to  the  cir- 
cumstances, and  he  gave  a  particular  and  distinct  account  of  all  the 
circumstances,  which  afterwards  appears  to  be  false,  he  cannot  but  be 
guilty  of  perjury,  inasmuch  as  nothing  can  be  more  apt  to  incline  a 
jury  to  give  credit  to  the  substantial  jDart  of  a  man's  evidence,  than 
his  appearing  to  have  an  exact  and  particular  knowledge  of  all  the 


1062  PERJURY. 

circumstances  relating  to  it.  Upon  these  grounds  the  opinion  of  the 
judges  seems  to  be  very  reasonable  (1  Eolle,  368  ;  Palmer,  382),  who 
held  a  witness  to  be  guilty  of  perjury,  who  in  an  action  of  trespass 
for  breaking  the  plaintifi^'s  close,  and  spoiling  it  with  sheep,  deposed 
that  he  saw  30  or  40  sheep  in  the  close,  and  that  he  knew  them  to  be 
the  defendant's  because  they  were  marked  with  a  mark  which  he 
knew  to  be  the  defendant's,  Avhereas  in  truth  the  defendant  never  used 
such  a  mark  ;  for  the  giving  of  such  a  specnal  reason  for  his  remem- 
brance, could  not  but  make  his  testimony  the  more  credible  than  it 
would  have  been  without  it ;  and  though  it  signified  nothing  to  the 
merits  of  the  cause  whether  the  sheep  had  auy  mark  or  not,  yet  inas- 
much as  the  assigning  such  a  circumstance,  in  a  thing  immaterial  had 
such  a  direct  tendency  to  corroborate  the  evidence  concerning  what 
was  most  material,  it  was  consequently  equally  prejudicial  to  the 
party,  and  equally  criminal  in  its  own  nature,  and  equally  tending  to 
abuse  the  administration  of  justice,  as  if  the  matter  sworn  had  been 
the  very  point  in  issue.^  Hawk.  P.  C.  b.  1,  c.  69,  s.  8  ;  3  Russ.  Cri. 
10,  5th  ed.  See  also  R.  v.  Tyson,  L.  R.  1  C.  C.  R.  107  ;  37  L.  J., 
M.  C.  7. 

The  vendor  of  goods  having  obtained  a  verdict  in  an  action  on  a 
contract  upon  proof  of  the  same  by  bought  and  sold  notes,  the  pur- 
chasers filed  a  bill  in  chancery  for  a  discovery  of  other  parol  terms, 
and  for  equitable  relief  from  the  contract.  The  answer  to  the  bill 
denied  the  existence  of  the  alleged  parol  terms.  On  an  indictment 
assigning  perjury  upon  the  allegation  which  contained  such  denial ;  it 
was  held  by  Coleridge,  J.,  that  the  prayer  of  the  bill  being  not  to  en- 
force the  parol  terms,  but  to  obtain  relief  from  the  contract,  the  assign- 
ment of  perjury  was  upon  a  matter  material  and  relevant  to  the  suit  in 
chancery.     R.  v.  Yates,  Carr.  &  M.  132,  41  E.  C.  L. 

A  question  having  no  general  bearing  on  the  matters  in  issue  may  be 
made  material  by  its  relation  to  the  witness's  credit,  and  false  swearing 
thereon  will  be  perjury,  R.  v.  Overton,  2  Moo.  C.  C.  263 ;  R.  v. 
Phillpotts,  2  Den.  C.  C.  R.  302  ;  21  L.  J.,  M.  C.  1 8.  In  the  latter 
case,  the  evidence  given  in  respect  to  which  perjury  had  been  assigned 
was  afterAvards  withdrawn  and  Avas  inadmissible,  but  it  was  held  that 
this  could  not  purge  the  false  swearing ;  and  Maule,  J.,  in  the  course 
of  the  argument  said  :  "  Here  the  defendant,  by  means  of  a  false  oath, 
endeavors  to  have  a  document  received  in  evidence;  it  is  therefore  a 
false  oath  in  a  judicial  proceeding ;  it  is  material  to  that  judicial  pro- 
ceeding, and  it  is  not  necessary  that  it  should  have  been  relevant  and 
material  to  the  issue  being  tried." 

Upon  an  application  for  an  order  of  affiliation  the  Avoman  was 
cross-examined,  as  to  whether  she  had  not  had  connection  with  G., 
in  the  month  of  September,  the  child  having  been  born  in  the  month 
of  March.  The  question  was  material  to  the  issue  only  in  so  far 
as  it  affected  her  credit.  She  denied  having  had  connection  with  G., 
and  he  was  called  and  swore  to   having   had   connection  with  her  in 

1  State  V.  Strat,  1  Murph.  124 ;  State  v.  Ilattaway,  2  N.  &  McC.  118  ;  Wilson  v. 
Nations,  5  Yerg.  211.     S. 


PERJURY.  1063 

*September.  Upon  this  perjury  was  assigned,  and  the  prisoner  r*oKi 
bein<^  convicted,  the  conviction  was  sustained,  although  the  ^ 
evidence  of  G.  was  legally  inadmissible  and  ought  not  to  have  been 
received.  This  case  is  thus  an  authority  for  two  propositions  :  First, 
that  the  evidence  which  goes  only  to  the  credit  of  a  witness  is 
material ;  and,  Secondly,  that  perjury  may  be  assigned  upon  evidence 
improperlv  admitted.  R.  v.  Gibbon,  L.  &  C.  109  ;  31  L.  J.,  M.  C. 
98.     See  also  R.  v.  Mullany,  L.  &  C.  593  ;  34  L.  J.,  M.  C.  111. 

The  degree  of  materiality  is  not,  as  it  seems,  to  be  measured.  Thus 
it  need  not  appear  that  the  evidence  was  sufficient  for  the  party  to  re- 
cover upon,  for  evidence  may  be  very  material,  and  yet  not  full 
enough  to  prove  directly  the  issue  in  question.  R.  v.  Rhodes,  2  Ld. 
Raym.  887.  So  if  the  evidence  was  circumstantially  material,  it  is 
sufficient.     R.  v.  Griepe,  1  Ld.  Raym.  258 ;  12  Mod.  145. 

A  few  cases  may  be  mentioned  to  illustrate  the  question  of  materi- 
ality. If  in  answer  to  a  bill  filed  by  A.  for  redemption  of  lands  as- 
signed to  him  by  B.,  the  defendant  swears  that  he  had  no  notice  of 
the  assignment,  and  insists  upon  taking  another  bond  debt  due  from 
B.  to  his  mortgage,  this  is  a  material  fact  on  which  perjury  may  be 
assigned.  R.  v.  Pepy,  Peake,  N.  P.  C.  138.  In  an  answer  to  a  bill 
filed  against  the  defendant  for  the  specific  performance  of  an  agree- 
ment relating  to  the  purchase  of  land,  the  defendant  had  relied  on  the 
statute  of  frauds  (the  agreement  not  being  in  writing),  and  had  also 
denied  having  entered  into  any  such  agreement,  and  upon  this  denial 
in  his  answer  he  was  indicted  for  perjury ;  but  Abbott,  C.  J.,  held 
that  the  denial  of  an  agreement  which  by  the  statute  was  not  binding 
upon  the  parties,  was  wholly  immaterial,  and  the  defendant  was  ac- 
quitted. R.  V.  Dunston,  Ry.  &  Moo.  N.  P.  C.  109  ;  but  see  Bartlett 
V.  Pickersgill,  4  Burr.  2255  ;  4  East,  577  (71).  An  indictment  for 
perjury  stated  that  it  became  a  material  question,  whether  on  the  oc- 
casion of  a  certain  alleged  arred  L.  touched  K.,  etc.  The  defendant's 
evidence  as  set  out  was,  "  L.  put  his  arms  round  him  and  embi-aced 
him  "  innuendo,  that  L.  had  on  the  occasion  to  which  the  said  evidence 
applied  touched  the  person  of  K.  It  was  held  by  the  Court  of  King's 
Bench,  that  the  materiality  of  this  evidence  did  not  sufficientlv  appear. 
R.  V.  Nicholl,  1  B.  &  Ad.  21,  20  E.  C.  L.  An  indictment"  for  per- 
jury stated,  that  H.  L.  stood  charged  by  F.  W.  before  T.  S.,  clerk,  a 
justice  of  the  peace,  with  having  committed  a  trespass,  by  entering 
and  being  in  the  day-time  on  certain  land  in  the  pursuit  of  game,  on 
the  12th  August,  1843,  and  that  T.  S.  proceeded  to  the  hearing  of 
the  charge,  and  tliat  upon  the  hearing  of  the  charge  the  defendant  C. 
B.  falsely  swore  that  he  did  not  see  H.  L.  during  the  whole  of  the 
said  12th  August,  meaning  that  he  the  said  C.  B.  did  not  see  the  said 
H.  L.  at  all  on  the  said  12th  day  of  August  in  the  year  aforesaid ; 
and  tiiat  at  the  time  he  the  said  C.  B.  swore  as  aforesaid,  it  was  material 
and  necessary  for  the  said  T.  S.  so  being  such  justice  as  aforesaid,  to 
inquire  of,  and  be  informed  by  the  said  C.  B.,  whether  he  the  said  C. 
B.  did  see  the  said  H.  L.  at  all  during  the  said  12th  day  of  August 
in  the  year  aforesaid.     It  was  held  by  Alderson,  B.,  that  this  aver- 


1064  PERJURY. 

ment  of  materiality  was  insufficient,  because,  consistently  with  the 
averment,  it  mi^lit  have  been  material  for  T.  S.  in  some  other  matter, 
and  not  in  tlie  matter  stated  to  have  been  in  issue  before  him,  to  have 
put  this  question,  and  received  this  answer.  R.  v.  Bartholomew,  1 
C.  &  K.  366,  47  E.  C.  L.  An  indictment  for  perjury  on  a 
charge  of  bestiality  stated,  that  it  was  material  "  to  know  the  state 
*^^91  *^^  ^^^^  ^'^^^  '^'  ^''^  dress  at  the  time  the  said  offence  was  so 
-I  charged  to  be  committed  as  aforesaid  :"  this  was  held  by  the 
judges  to  be  a  sufficient  averment  of  materiality,  to  allow  the  prose- 
cutor to  show  tiiat  the  flap  of  his  trousers  was  not  unbuttoned  (as 
sworn  by  the  defendant),  and  that  his  trousers  had  no  flap.  R.  v. 
Gardner,  2  Moo.  C.  C.  95.  A  witness  having  sworn  at  a  trial  that  he 
did  not  write  certain  words  in  the  presence  of  D.,  it  was  held  that  the 
presence  of  D.  might  be  a  fact  as  material  as  the  writing  of  the  words, 
and  therefore  that  an  assignment  of  perjury,  charging  that  the  defend- 
ant did  write  the  words  in  question  in  D.'s  presence  Mas  good.  R.  v. 
Schlesinger,  10  Q.  B.  670,  59  E.  C.  L.;  17  L.  J.,  M.  C.  29.  AVhere  a 
plaintiff  in  an  action  for  goods  sold  swore  falsely  in  cross-examination 
that  she  had  never  been  tried  at  the  Old  Bailey,  and  had  never  been  in 
custody  at  the  Thames  Police  station,  Campbell,  C  J.,  held,  on  an  in- 
dictment for  perjury,  that  this  evidence  was  material.  R.  v.  Lavey,  3 
C.  &  K.  26. 

In  order  to  show  the  materiality  of  the  deposition  or  evidence  of 
the  defendant  it  is  essential,  where  the  perjury  assigned  is  in  an  answer 
to  a  bill  in  equity,  to  produce  and  prov^e  the  bill,  or  if  the  peijury 
assigned  is  on  an  affidavit,  to  produce  and  prove  the  previous  proceed- 
ings, such  as  the  rule  nisi  of  the  court,  in  answer  to  which  the  affidavit 
in  question  has  been  made.  If  the  assignment  be  on  evidence  on  the 
trial  of  a  cause,  in  addition  to  the  production  of  the  record,  the  pre- 
vious evidence  and  state  of  the  cause  should  be  proved,  or  at  least  so 
much  of  it  as  shows  that  the  matter  sworn  to  was  material.  2  Stark. 
Ev.  626,  2nd  cd. 

In  an  indictment  for  peijury,  Patteson,  J.,  held  that  an  averment 
that  "  it  became  and  was  material  to  ascertain  the  truth  of  the  matter 
hereinafter  alleged  to  have  been  sworn  to,  and  stated  by  the  said  J.  G. 
upon  his  oath,"  was  not  a  good  averment  of  materiality.  R.  v.  Good- 
fellow,  Carr.  cSr  M.  569,  41  E.  C.  L. 

Proof  of  the  introductory  averments.  Where,  in  order  to  show 
the  materiality  of  the  matter  sworn  to,  introductory  averments  have 
been  inserted  in  the  indictment,  those  averments  nuist  be  jiroved.  3 
Russ.  Cri.  37,  oth  ed.  Where  upon  the  trial  of  an  indictment  con- 
taining an  assignment  of  perjin-y  in  the  following  form,  "  whereas  in 
truth  and  in  fact  the  said  defendant  at  the  time  of  effecting  the  said 
policy,  that  is  to  say,  a  certain  policy  purj)orting  to  have  been  written 
by  one  Kite,  by  his  agent  Meyer,  on  the  13th  August,  1807,  etc.,  (and 
by  other  underwriters  specified  in  the  indictment,)  well  knew,"  etc.; 
and  on  production  of  the  policy  it  appeared  to  have  been  underwritten 
by  Meyer  for  Kite  on  the  15th ;    Lord  Ellenborough  was  of  opinion, 


PERJURY.  1065 

that  as  the  prosecutor  had  chosen  to  allege  a  fact,  material  with  refer- 
ence to  the  knowledge  of  the  defendant,  it  was  necessary  to  prove  it, 
and  held  the  variance  fatal.  R.  v.  Pluck,  1  Stark,  N.  P.  C.  523,  2 
E.  C.  L.  But  see  now,  as  to  the  power  of  amendment,  14  &  15  Vict. 
c.  100,  s.  1,  ante,  p.  209. 

But  where  the  introductory  averment  is  not  matter  of  description, 
it  is  sufficient  to  prove  the  substance  of  it,  and  a  variance  in  other 
respects  will  be  immaterial.  Thus  where  the  indictment  averred  the 
perjury  to  have  been  committed  in  the  defendant's  answer  to  a  bill  of 
discovery  in  the  Exchequer,  alleged  to  have  been  filed  on  a  day 
specified,  and  it  appeared  that  the  bill  was  filed  in  a  preceding  term, 
Lord  Ellenborough  ruled  that  the  variance  was  not  material ;  since 
*the  day  was  not  alleged  as  part  of  the  record,  and  that  it  was  r^oco 
sufficient  to  prove  the  bill  filed  on  any  other  day.^  R.  v.  Huck,  L 
1  Stark.  N.  P.  C.  521,  2  E.  C.  L.  And  where  perjury  was  assigned 
on  an  answer  to  a  bill  alleged  to  have  been  filed  in  a  particular  term, 
and  a  copy  produced  was  of  a  bill  amended  in  a  subsequent  term  by 
order  of  the  court,  it  was  held  to  be  no  variance,  the  amended  bill 
being  part  of  the  original  bill.  R.  v.  Waller,  2  Stark.  Ev.  623.  And 
again  in  a  similar  case,  where  the  bill  was  stated  to  have  been  filed  by 
A.  against  B-  (the  defendant  in  the  indictment)  and  another,  and  in 
fact  it  was  filed  against  B.,  C.  and  D.,  but  the  perjury  was  assigned 
on  a  part  of  the  answer  which  was  material  between  A.  and  B.,  Lord 
Ellenborough  held  the  variance  immaterial.  R.  v.  Benson,  2  Campb. 
507.  See  also  R.  v.  Baily,  7  C.  &  P.  264,  32  E.  C,  L.  The  defend- 
ant was  tried  on  an  indictment  for  perjury  committed  in  giving  evi- 
dence, as  the  prosecutor  of  an  indictment  against  A.  for  an  assault ; 
and  it  appeared  that  the  indictment  for  the  assault  charged,  that  the 
prosecutor  had  received  an  injury,  "  whereby  his  life  was  greatly  de- 
spaired of."  In  the  indictment  for  perjury,  the  indictment  for  the 
assault  was  introduced  in  these  words,  "  which  indictment  was  pre- 
sented in  tlie  manner  and  form  following,  tliat  is  to  say,"  and  set  forth 
the  indictment  for  the  assault  at  length,  and  correctly,  with  the  omis- 
sion of  the  word  "  despaired,"  in  the  above  passage.  It  was  insisted 
that  this  was  a  fatal  variance,  but  the  learned  judge  who  tried  the  case 
said,  that  the  word  tenor  has  so  strict  and  technical  a  meaning  as  to 
make  a  literal  recital  necessary,  but  that  by  the  words  "  in  manner  and 
form  following,  that  is  to  say,"  nothing  more  was  requisite  than  a  sub- 
stantial recital,  and  that  the  variance  in  the  present  case  was  only  mat- 
ter of  form,  and  did  not  vitiate  the  indictment.  R.  v.  May,  3  Russ. 
Cri.  41,  5th  ed.  Where  the  indictment  stated  that  an  issue  came  on  to 
be  tried,  and  it  appeared  that  an  information  containing  several  counts, 
upon  each  of  which  issue  was  joined,  came  on  to  be  tried,  the  variance 
was  iield  immaterial.  R.  v.  Jones,  Peake,  N.  P.  C.  37.  The  defend- 
ant was  indicted  for  perjury  in  an  answer  to  a  bill  in  chancery,  which 
had  been  amended  after  the  answer  put  in.  To  prove  the  amendments 

^  In  an  indictment  for  perjurj',  the  day  on  which  the  offence  was  committed  must 
be  precisely  stated.  United  States  v.  Bowman,  2  Wash.  C.  C.  328 ;  United  States  v, 
MciS^eal,  1  Gallison,  387.    S. 


1066  PERJURY. 

a  witness  was  called,  who  stated  that  the  amendments  were  made  by 
a  clerk  in  the  six  clerks'  office,  whose  Iiandwi-iting  he  knew,  and  that 
the  clerk  wrote  the  word  "amendment"  against  each  alteration.  Lord 
Tenterden  was  of  opinion  that  this  was  suificient  proof  of  the  amend- 
ments, bnt  did  not  think  it  material  to  the  case.  R.  v.  Laycock,  4  C. 
&  P.  326,  19  E.  C.  L. 

Upon  an  indictment  for  perjury  committed  on  a  trial  at  the  London 
sittings,  the  indictment  alleged  the  trial  to  have  taken  place  before 
Sir  J.  Littledalc,  one  of  the  justices,  etc.  On  producing  the  record, 
it  did  not  appear  before  whom  the  trial  took  place,  but  the  postca 
stated  it  to  have  been  before  Sir  C.  Abbott,  C.  J.,  etc.  In  point  of 
fact  it  took  place  before  Mr.  Justice  Littledalc.  I^ord  Tenterden 
overruled  the  objection,  that  this  was  a  variance,  saying,  "  On  a  trial 
at  the  assizes,  the  postea  states  the  trial  to  liave  taken  place  before 
both  justices  ;  it  is  considered  in  law  as  before  both,  though  in  fact 
it  is  before  one  only ;  and  I  am  not  aware  that  the  postea  is  ever 
made  up  here  difterently,  when  a  judge  of  the  court  sits  for  the 
chief  justice."  R.  v.  Coppard,  Moody  &  Malk.  118.  Where  an  in- 
dictment alleged  that  the  defendant  committed  peijury  on  the  trial 
of  one  B.,  and  that  B.  was  convicted,  and  it  appeared  by  the  record 
when  produced  that  the  judgment  against  B.  had  been  revcr.-ed  upon 
*«^zn  *6^^or  after  the  bill  of  indictment  against  the  defendant  had 
-I  been  found  ;  it  was  held  by  AVilliams,  J.,  that  this  \vas  no  vari- 
.ance.  R.  v.  Meek,  9  C.  &  P.  513,  38  E.  C.  L.  Where  an  indictment 
alleged  that  "  a  certain  action  came  on  to  be  tried  in  due  form  of  law," 
and  was  "  duly  tried  by  a  jury  of  the  country  in  that  behalf  duly 
sworn,"  and  it  appeared  by  the  record  of  the  trial  that  the  jury,  hav- 
ing considered  their  verdict,  returned,  but  did  not  give  a  verdict,  the 
trial  ending  in  a  non-suit,  it  was  held  that  the  indictment  was  good. 
R.  V.  Bray,  9  Cox,  C.  C.  218.  An  indictment  for  perjury  alleged  the 
trial  of  an  issue  before  E.  S.  esq.,  sheriff  of  D.,  by  virtue  of  a  writ 
directed  to  the  sheriff,  the  Avrit  of  trial  put  in  evidence  was  directed  to 
the  sheriff,  and  the  return  was  of  a  trial  before  him  ;  but  it  was  proved 
that  in  fact  the  trial  took  place  before  a  deputy,  not  the  under-sher- 
iff. This  was  held  to  be  no  variance.  P.  v.  Dunn,  2  ]\Ioo.  C.  C.  P. 
297.  See  also  P.  v.  Schlesinger,  10  Q.  B.  670,  59  E.  C.  L.  Where 
an  indictment  for  perjury  assigned  on  an  affidavit  made  for  the  pur- 
pose of  setting  aside  a  judgment,  since  the  rule  of  H.  T.,  4  Will.  4, 
alleged  that  the  judgment  was  entered  up,  "  in  or  as  o/"  Trinity  term, 
5  Will.  4,  and  the  record  of  the  judgment,  when  produced,  was  dated 
"June  the  26,  5  Will.  4.;"  Patteson,  J.,  held  this  to  be  a  variance, 
and  refused  to  amend  under  the  9  Geo.  4,  c.  15.  R.  v.  Cooke,  7  C.  & 
P.  559,  32  E.  C.  L.  An  allegation  that  judgment  was  "entered  up" 
in  an  action,  is  proved  by  the  prcxluction  of  the  judgment  book  from 
the  office  in  which  the  incipitur  is  entered.  P.  v.  Gordon,  Carr.  & 
M.  410,  41  E.  C.  L.  On  a  charge  of  jjcrjury  alleged  to  have  been 
committed  before  commissioners  to  examine  witnesses  in  a  chancery 
suit,  the  indictment  stated  that  the  four  commissioners  were  commanded 
to  examine  the  witnesses.  Their  commission  was  put  in,  and  by  it  the 


PERJUEY.  1067 

commissioners,  or  any  three  or  two  of  them,  were  commanded  to  ex- 
amine witnesses ;  this  was  held  by  Coleridge,  J.,  to  be  a  fatal  variance, 
and  he  would  not  allow  it  to  be  amended.  R.  v.  Hewins,  9  C.  &  P. 
78G,  38  E,  C.  L. 

An  allegation  that  the  defendant  made  his  warrant  of  attorney, 
directed  to  R.  W.  and  F.  B.  "  then  and  still  being  attornies  "  of  the 
Iv.  B.,  is  proved  by  putting  in  the  warrant.  Id.  Where  in  an  in- 
dictment for  perjury  against  C.  D.  it  is  averred,  that  a  cause  was  de- 
pending between  A.  B.  and  C.  D. ;  Lord  Denman,  C.  J.,  held  that  a 
notice  of  set-off  intituled  in  a  cause  A.  B.  against  C.  D.  was  not  suf- 
ficient evidence  to  support  the  allegation.  R.  v.  Stoveld,  6  C.  &  P. 
489,  25  E.  C.  L.  As  to  what  is  not  a  sufficient  examined  copy  of  a 
bill  in  chancery,  see  R.  v.  Christian,    Carr.  &  M.  388,  41  E.  C.  L. 

An  indictment  for  perjury  stated  that  "  in  the  Whitechapel  County 
Court  of  ]Middlesex,  holden  at,  etc.,  in  the  county  of  Middlesex, 
before  J.  ]\I.,  then  and  there  being  a  judge  of  the  court,  a  certain 
action  of  contract  pending  in  the  court  between  A.  L.  plaintiif  and 
R.  H.  defendant,  came  on  to  be  tried ;"  upon  which  trial  A.  L.  was 
then  and  there  duly  sworn,  "  before  J.  M.,  then  and  there  being  judge 
of  the  court,  and  then  and  there  having  sufficient  and  competent  au- 
thority to  administer  the  oath  to  A.  L.  in  that  behalf;"  it  was  held 
that  it  sufficiently  appeared  that  the  court  in  which  the  action  was 
tried  was  held  in  pursuance  of  9  &  10  Vict.  c.  95.  Lavey  v.  R.,  2  Den. 
C.  C.  R.  504;  21  L.  J.,  M.  C.  10.  In  R.  v.  Rowland,  1  F.  &  F.  72, 
Bramwell,  B.,  held,  that  on  an  indictment  for  perjury  in  order  to 
prove  the  proceedings  of  the  County  Court,  it  was  necessary  to  produce 
either  the  clerk's  minutes  or  a  copy  thereof  bearing  the  seal  of  the 
court;  the  County  Court  Act,  9  &  10  Vict.  c.  95,  s.  Ill,  directing 
*that  such  minutes  should  be  kept  and  that  such  minutes  should  r^nr  r 
be  admissible  as  evidence.  L 

An  indictment  for  perjury  committed  by  a  bankrupt  before  the  in- 
solvent court,  at  an  adjournment  after  his  first  examination,  alleged 
that  he  ^vas  a  trader  owing  debts  less  than  300^.,  and  other  matters. 
The  petition  upon  which  the  prisoner  had  applied  to  the  insolvent 
court  alleged  the  very  same  matters  as  facts,  upon  which,  with  others, 
he  rested  his  application.  It  was  held  by  the  Court  of  Criminal  Ap- 
peal, that  this  was  good  primd  facie  evidence  of  the  allegations  in 
the  indictment  sufficient  to  throw  the  onus  of  proving  the  contrary 
on  the  prisoner.  R.  v.  Westlev,  29  L.  J.,  M.  C.  35  ;  Bell,  C.  C. 
193. 

In  the  same  case  the  indictment  alleged  that  notice  of  the  petition 
was  inserted  in  the  "  Gazette  ;"  that  a  day  was  appointed  for  the  first 
examination,  and  the  sitting  on  that  day  was  adjourned.  No  evidence 
was  given  in  support  of  these  allegations,  but  it  was  proved  that 
the  petition  of  the  prisoner  was  filed  in  the  insolvent  court.  An 
objection  Avas  taken  at  the  trial  that  without  proof  of  these  allegations, 
the  jurisdiction  of  the  insolvent  court  was  not  shown.  But  it  was 
held  that,  as  upon  filing  the  petition  the  court  had  jiu'isdiction  to 
institute  the  examination,  and  as  in  a  court  of  record  omnia  prce- 


10G8  PERJURY. 

sumuniur  rlt(>.  esse  acta,  and  as  it  was  generally  alleged  in  the  indict- 
ment that  the  court  had  lavvfid  power  to  administer  the  oath,  the 
allegations  of  which  no  proof  was  offered  might  be  rejected  as  im- 
material. 

The  indictment  in  this  case  alleged  that  the  prisoner,  after  the 
passing  and  coming  into  operation  of  certain  statutes,  to  wit,  on  the 
20th  May,  1859,  presented  his  petition  ;  and  then  went  on  purporting 
to  set  out  the  titles  of  the  statute  in  lictc  verba.  The  years  of  Her 
Majesty's  reign,  when  two  of  the  Acts  were  passed  were  inaccurately 
stated,  and  there  was  another  inaccuracy  in  setting  out  the  title  of  one 
of  them  ;  the  first  two  of  these  inaccuracies  was  amended  at  the 
trial,  and  the  other  not.  It  was  held,  first,  that  the  judge  had  power 
to  make  the  amendment ;  secondly,  that  as  the  statute  was  only  re- 
ferred to  in  order  to  show  that  the  petition  was  presented  after  it  had 
passed,  and  as  that  appeared  sufficiently  from  the  prior  allegation  of 
the  date  when  the  petition  was  filed,  the  reference  to  the  statute  might 
be  rejected  altogether  as  immaterial.  In  this  case,  Pollock,  C.  B., 
stated  his  opinion,  generally,  that  where  the  title  of  an  Act  of 
parliament  is  set  out  with  sufficient  accuracy  to  enable  the  court  to 
know  with  certainty  what  Act  is  meant,  any  minor  inaccuracy  is  im- 
material. 

Proof  of  the  falsity  of  the  matter  sworn.  Evidence  must  be 
given  to  prove  the  falsity  of  the  matter  sworn  to  by  the  defendant ; 
but  it  is  not  necessary  to  prove  that  all  the  matters  assigned  are  false; 
for,  if  one  distinct  assignment  of  perjury  be  })roved  the  defendant 
ought  to  be  found  guilty.^  R.  v.  Rhodes,  2  Lord  Raym.  88G  ;  2  W. 
Bl.  790  ;  2  Stark.  Ev.  627,  2nd  ed.  And  where  the  defendant's  oath 
is  as  to  his  belief  only,  the  averment  that  he  "well  knew  to  the 
contrary"  must  be  proved.  See  2  Chitty,  C.  L.  312  ;  3  Russ.  Cri. 
65,  5th  ed. 

"The  first  observation  on  this  part  of  the  case  is,  that  the  defendant 
swears  to  the  best  of  his  recollection,  and  it  requires  very  strong 
proof,  in  such  a  case,  to  show  that  the  party  is  wilfully  perjured  ;  I 
*8fir"i  *tlo  not  mean  to  say  that  there  may  not  be  cases  in  which  a 
-J  party  may  not  be  proved  to  be  guilty  of  perjury,  althougli  he 
only  swears  to  the  best  of  his  recollection  ;  but  I  should  say  that  it 
was  not  enough  to  show  merely  that  the  statement  so  made  was 
untrue."  Per  Tindal,  C.  J.,  R.  v.  Parker,  Carr.  &  M.  639,  41 
E.  C.  L. 

An  assignment  of  perjury  that  the  prosecutor  did  not  at  the  time 
and  place  sworn  to,  or  at  any  other  time  or  place,  commit  bestiality 
with  a  donkey  (as  sworn  to),  or  with  any  other  animal  ivhatsoever,  is 

^  An  indictment  for  perjury  must  expressly  contradict  the  matter  falsely  sworn  to 
by  the  accused.     Gibson  v.  State,  44  Ala.  17.     S. 

Wliere  more  tlian  one  assignment  is  made,  it  is  not  necessary  to  prove  all  that  is 
charged.  It  is  sufficient  to  prove  enough  to  make  out  the  offence.  Harris  r.  People, 
64  N.  Y.  148.  The  falsity  of  the  facts  sworn  to  by  the  accused  must  be  averred  in  the 
indictment  or  it  is  fatally  defective.  People  v.  Clements,  42  Hun,  (N.  Y.)  353 ;  Per- 
due V.  Commonwealth,  96  Pa.  St.  311. 


PERJUKY.  1069 

sufficiently  proved  by  the  evidence  of  two  witnesses  falsifying  the 
deposition  Avhich  had  been  sworn  to  bv  the  defendant.  R.  v.  Gardiner, 
2  Moo.  C.  C.  95  ;  8  C.  &  P.  737,  34  E.  C.  L. 

To  convict  a  person  of  perjury  before  a  grand  jury,  it  is  not  suf- 
ficient to  show  that  the  person  swore  to  the  contrary  before  the  ex- 
amining magistrate,  as  non  constat  which  of  the  contradictory  state- 
ments was  the  true  one.  Per  Tindal,  C.  J.,  R.  v.  Hughes,  1  C.  &  K. 
519,  47  E.  C.  L. 

Where  the  prosecutor  gave  no  evidence  upon  one  of  several  as-^sio-n- 
ments  of  perjury,  Lord  Denman  refused  to  allow  the  defendant  to 
show  that  the  matter  was  not  false.     R.  v.  Hemp,  5  C.  &  P.  468,  24 

E.  C.  L. 

F.  was  indicted  for  perjury,  committed  by  deposing  to  an  affidavit 
in  a  cause,  wherein  F.  was  the  plaintiff  and  E.  defendant,  that  E.  owed 

F.  50/.;  it  was  held  that  evidence  that  the  cause  was  after  the  making 
of  the  affidavit  referred  by  consent,  and  an  award  made  that  E.  owed 
nothing  to  F.,  was  not  admissible  in  proof  of  the  falsity  of  the  matter 
sworn.  R.  v.  Fontaine  Moreau,  11  Q.  B.  1028,  63  E.'C.  L.;  17  L. 
J.,  Q.  B.  187.  "The decision  of  the  arbitrator,"  said  Denman,. C.  J., 
in  delivering  the  judgment  of  the  court,  "  is  no  more  than  a  dec- 
laration of  his  opinion,  and  there  is  no  instance  of  such  a  decla- 
ration of  opinion  being  received  as  evidence  of  a  fact  against  the  party 
to  be  affected  by  the  proof  of  it  in  any  criminal  case." 

Where  the  perjury  is  alleged  to  have  been  committed  on  a  trial  in 
the  county  court,  it  is  not  necessary  that  the  judge's  notes  should  be 
produced  in  order  to  prove  what  the  prisoner  then  swore,  but  tlie  evi- 
dence of  any  person  who  was  present  at  the  trial,  and  who  took  notes 
of  what  passed,  and  is  able  to  swear  to  their  accuracy,  is  sufficient. 
R.  V.  Martin,  6  Cox,  C.  C.  107. 

Proof  of  the  corrupt  intention  of  the  defendant.  Evidence  is 
essential,  not  only  to  show  that  the  witness  swore  falsely  in  fact,  but 
also,  as  far  as  circumstances  tend  to  such  proof,  to  show  that  he  did  so 
corruptly,  wilfully,  and  against  his  better  knowledge.  2  Stark.  Ev. 
627,  2nd  ed.  In  this,  as  in  other  cases  of  intent,  the  jury  may  infer 
the  motive  from  the  circumstances.^  R.  v.  Knill,  5  B.  &  A.  929  (n), 
7  E.  C.  L. 

There  must  be  proof  that  the  false  oath  was  taken  with  some  degree 

*  False  swearing  to  a  fact,  to  the  best  of  the  opinion  of  the  witness,  which  the  wit- 
ness, though  without  any  reasonable  cause,  believes  to  be  true,  is  not  perjury.  Com- 
monwealth V.  Brady,  5  Gray,  78.  It  is  wrong  to  instruct  a  jury  that  "  the  want  of 
motive  or  interest  to  swear  falsely  is  a  circumstance  from  which  they  are  at  liberty  to 
infer  that  the  testimony  of  the  defendant  was  not  wilfully  and  corruptly  falge." 
Schaller  v.  State,  14  Mo.  502.  An  averment  in  an  indictment  for  peijury,  that  the  de- 
fendant knew  the  falsity  of  the  matter  testified  to  Uj  him,  is  not  requisite,  except 
where  the  perjury  is  assigned  upon  the  statement  by  the  accused  of  his  belief  or  de- 
nial of  his  belief  of  the  alleged  false  matter.  State  v.  Eaymond,  20  la.  582.  One 
may  be  convicted  of  perjury  in  testifying  to  an  allegation  which  he  believes,  if  he  has 
not  probable  ground  for  his  belief.  Stater.  Knox,  1  Phillips  (Law),  312.  A  witness 
who  does  not  know  whether  or  not  a  certain  event  occurred  at  a  certain  time  and 
place,  but  who  swears  that  it  did  not  occur  then  and  there,  is  guilty  of  peijury.  State 


1070  PERJURY. 

of  deliberation ;  for  if,  under  all  the  circumstances  of  the  case,  it  ap- 
pears that  it  was  owing  to  the  weakness  rather  than  the  perverseness 
of  tiie  party,  as  where  it  is  occasioned  by  surprise  or  inadvertence,  or 
by  a  mistake  with  regard  to  the  true  state  of  the  question,  this  would 
not  amount  to  voluntary  and  corrupt  perjury.  Hawk.  P.  C.  b.  1,  c. 
69,  s.  2  ;  2  Russ.  by  Greav.  597  ;  4  Bl.  Com.  127.  See  11.  v.  Stolady, 
supra,  p.  846.^ 

Witnesses — number  requisite.  It  is  a  general  rule,  that  the  tes- 
timony of  a  single  witness  is  insufficient  to  convict  on  a  charge  of 
perjury.  This  is  an  arbitrary  and  peremptory  rule,  founded  upon  the 
*Qr"-|  *general  apprehension  that  it  would  be  unsafe  to  convict  in  a 
-J  case  where  there  M'ould  be  merely  the  oath  of  one  man  to  be 
weighed  against  that  of  another.  2  Stark.  Ev.  626,  2nd  ed. ;  3  Russ. 
on  Cri.  72,  5th  ed. ;  Hawk.  P.  C.  b.  1,  c.  69;  4  Bl.  Com.  358.  But 
this  rule  must  not  be  understood  as  establishing  that  two  witnesses  are 
necessary  to  disprove  the  fact  sworn  to  by  the  defendant :  for,  if  any 
other  material  circumstance  be  proved  by  other  witnesses,  in  confir- 
mation of  the  witness  who  gives  the  direct  testimony  of  perjury,  it  may 
turn  the  scale,  and  warrant  a  conviction.  R.  v.  Lee,  3  Russ.  Cri.  72, 
6th  ed.  So  it  is  said  by  Mr.  Phillips,  that  it  does  not  appear  to  have 
been  laid  down  that  two  witnesses  are  necessary  to  disprove  the  fact 
stvorn  to  by  the  defendant ;  nor  does  that  seem  to  be  absolutely  requi- 
site ;  that  at  least  one  witness  is  not  sufficient ;  and,  in  addition  to  his 
testimony,  some  other  independent  evidence  ought  to  be  produced.  1 
Phill.  Ev.  141,  6th  ed.  "There  must  be  something  in  the  corrobo- 
ration, which  makes  the  fact  sworn  to  not  true,  if  that  be  true  also."  ^ 
l*er  Alderson,  B.,  in  R.  v.  Boulter,  infra. 

V.  Gates,  17  N.  H.  373.  To  constitute  perjury,  the  false  swearing  must  not  only  be 
wilful,  but  corrupt  or  intentionally  false.  Cothran  v.  State,  39  Miss.  541 ;  Scott  v. 
Cook,  1  Duv.  314.  S.  But  it  is  not  error  that  the  court  fails  to  so  charge.  Mor- 
gan V.  State,  63  Miss.  162. 

^  An  honest  onth,  taken  under  advice  of  counsel,  is  not  peijury.  State  v.  McKin- 
ney,  42  Iowa,  205.  It  is  error  for  the  court  to  refuse  to  permit  the  defendant  to  show 
that  when  he  took  the  oath  he  was  ignorant  that  it  was  not  true.  Flemister  v.  State, 
48  Ga.  170.  In  an  indictment  for  perjury  a  conviction  cannot  be  had  for  an  honest 
mistake.     People  v.  Dishler,  4  N.  Y.  Crim.  Rep.  188. 

*  State  V.  Hay  ward,  1  N.  &  McC.  547 ;  Coulter  v.  Stewart,  2  Yerg.  225  ;  Merritt's 
Case,  4  Rog.  Rec.  58  ;  Case  of  Francis  et  al..  Id.  12.  The  case  in  which  a  living  wit- 
ness to  the  corpus  delicti  of  the  defendant,  in  a  prosecution  for  peijiu'v,  may  be  dis- 
pensed with,  are  all  such  where  a  person,  charged  with  a  perjury  by  false  swearing  to 
a  fact  directly  disproved  by  documentary  or  written  testimony,  springing  fiom  him- 
self, with  circumstances  showing  the  corrupt  intent :  in  cases  v.^here  the  perjury 
charged  is  contradicted  by  a  public  record,  i)roved  to  have  been  well  known  to  the 
defendant  when  he  took  the  oath,  the  oath  only  proved  to  have  been  taken :  in  cases 
where  the  party  is  charged  with  taking  an  oath  contrary  to  what  he  must  necessarily 
have  known  to  be  the  truth,  and  the  folse  swearing  can  be  proved  by  his  own  letters 
relating  to  the  fact  sworn  to,  or  by  other  written  testimony  existing  or  being  found  in 
the  possession  of  the  defendant,  and  which  has  been  treated  by  him  as  containing  the 
evidence  of  the  fact  recited  in  it.  United  States  ?•.  Wood,  14  Pet.  430.  On  a  trial  for 
perjury,  the  testimony  of  a  single  witness  is  sufficient  to  prove  that  the  defendant 
swore  as  is  alleged  in  the  indictment.  Commonwealth  v.  Pollard,  12  Mete.  225.  In 
order  to  authorize  a  conviction  of  perjury,  it  is  necessar}',  in  addition  to  the  testimony 
of  one  witness  to  the  falsity  of  the  statement  alleged  as  the  perjury,  that  strong  cor- 


PEEJURY.  1071 

A  distinction,  however,  appears  to  be  taken  between  proving  posi- 
tive allegations  in  the  indictment,  and  disproving  the  trnth  of  the 
matter  sworn  to  by  the  defendant ;  the  latter,  it  is  said,  requiring  the 
testimony  of  two  witnesses.  Thus,  Mr.  Serjeant  Hawkins  says,  that 
it  seems  to  be  agreed  that  two  witnesses  are  required  in  proof  of  the 
crime  of  perjury  ;  but  the  taJdng  of  the  oath  and  the  facts  deposed 
may  be  proved  by  one  witness  only.  Hawk.  P.  C.  b.  2,  c.  46,  s.  10. 
So  it  is  said  by  ]\Ir.  Starkic  (citing  the  above  passage  from  Hawkins), 
that  it  seems  the  coniradidion  must  be  given  by  two  direct  witnesses ; 
and  that  the  negative,  supported  by  one  direct  witness  and  by  circum- 
stantial evidence,  would  not  be  sufficient.  He  adds,  that  he  had  been 
informed  that  it  had  been  so  held  by  Lord  Tenterden.  2  Stark.  Ev. 
627  (?i). 

In  R,  V.  Champney,  2  Lew.  C.  C.  258,  Coleridge,  J.,  said,  "One 
witness  in  perjury  is  not  sufficient,  unless  supported  by  circumstantial 
evidence  of  the  strongest  kind  :  indeed.  Lord  Tenterden  was  of  ojiinion, 
that  two  witnesses  were  necessary  to  a  conviction."  See  R.  v.  Mudie, 
1  Moo.  &  R.  128.  The  rule,  that  the  testimony  of  a  single  witness 
is  not  sufficient  to  sustain  an  indictment  for  perjury,  is  not  a  mere 
technical  ruk,  but  a  rule  founded  on  substantial  justice  ;  and  evidence 
confirmatory  of  that  one  witness,  in  some  slight  particulars  only,  is 
not  sufficient  to  warrant  a  conviction.  Per  Coleridge,  J.,  R,  v.  Yates, 
Carr.  &  M.  132, 41  E.  C.  L. ;  but  in  R.  v.  Shaw,  L.  &  C.  590  ;  34  L.  J., 
M.  C,  109,  Erie,  C.  J.,  said,  "  It  is  well-ascertained  law  that,  upon 
an  indictment  for  perjury,  it  is  necessary  to  have  more  than  the  evi- 

roborating  circumstances,  of  such  a  character  as  clearly  to  turn  the  scale  and  over- 
come the  oath  of  the  party  charged  and  the  legal  presumption  of  his  innocence, 
should  be  established  by  independent  evidence ;  and  therefore  when  the  charge  in  an 
indictment  for  perjury  was  that  the  defendant  had  testified  that  no  agreement  for  the 
payment  by  hira  of  more  than  the  lawful  rate  of  interest  had  ever  been  made  between 
him  and  the  person  to  whom  lie  was  indebted  upon  certain  contracts,  it  was  held  that 
the  testimony  of  the  creditor  to  the  existence  of  such  an  agreement,  corroborated  by 
the  letters  of  the  defendant  to  him,  containing  a  direct  promise  to  pay  more  than 
legal  interest  on  a  demand  thus  held,  was  competent  and  sufficient  evidence  of  the 
falsity  of  the  statement  alleged  as  the  perjury.  Commonwealtli  v.  Parker,  2  Cush. 
212.  Where  a  defendant,  by  a  subsequent  deposition,  expressly  contradicts  and  falsi- 
fies a  former  one  made  by  hira,  and  in  such  subsequent  deposition  expressly  admits 
and  alleges  tliat  such  former  one  was  intentionally  false  at  the  time  it  was  made,  or  in 
such  subsequent  deposition  testifies  to  such  other  facts  and  circumstances  as  to  render 
the  corrupt  motive  apparent,  and  negative  the  proljability  of  mistake  in  regard  to  the 
first,  he  may  be  properly  convicted  upon  an  indictment  charging  the  first  deposition 
to  be  false,  without  any  other  proof  than  that  of  the  two  depositions.  People  v.  Bur- 
den, 9  P>arb.  4'J7.  Where  on  a  trial  for  perjury  there  is  the  positive  testimony  of  one 
witness  in  support  of  the  indictment,  the  corroborating  testimony  required  by  the 
statute  to  autliorize  a  conviction  need  not  be  equivalent  to  the  positive  testimony  of 
a  witness.  Hendricks  v.  State,  26  Ind.  493.  [The  corroborating  testimony  must  cor- 
roborate material  testimony.  It  is  not  sufficient  if  it  merely  supjiort  some  indistinct 
and  immaterial  matter.  State  v.  Buie,  43  Tex.  532.]  Tlie  testimony  of  one  witness, 
supported  by  strong  corroborative  evidence  as  to  the  faLsity  of  the  matter,  sworn  to 
by  the  accused,  is  sufficient  to  sustain  an  indictment  for  perjury.  State  v.  Raymond, 
20  la.  582.  The  law  does  not  require  two  witnesses  to  establish  the  giving  of  the  tes- 
timony, it  only  requires  two  witnesses  to  prove  its  falsity.  State  v.  Wood,  17  la.  18.  S. 
To  convict  under  an  indictment  for  perjury,  tlie  falsity  of  the  defendant's  statement 
must  be  proved  by  two  witnesses,  or  if  there  is  only  one  witness  there  must  be  strong 
corroborating  circumstances  in  addition.     Peterson  v.  State,  74  Ala.  34. 


1072  PERJURY. 

dence  of  one  witness  alone,  for  that  is  but  the  oath  of  one  against  one, 
which  leaves  the  matter  even,  and  entitles  the  })risoner  to  an  acquittal. 
The  prosecution  must  do  more  than  that.  They  must  turn  the  scale 
by  corroborating  their  witness.  The  degree  of  corroboration,  how- 
ever, which  is  necessary,  is  not  definable,  and  any  attempt  to  define  it 
will  prove  illusory.  It  must  be  something  which,  in  the  opinion  of 
the  tribunal  before  which  it  is  brought,  is  deserving  of  the  name  of 
corroboration."  Where  there  were  three  assignments  of  perjury  upon 
evidence  relating  to  one  and  the  same  transaction,  at  one  and  the  same 
time  and  place,  it  seems  to  have  been  considered  that  the  jury 
ought  not  to  convict  on  one  of  the  assignments,  although  there  were 
several  witnesses  who  corroborated  the  witness  who  spoke  to  such 
assignment,  on  the  facts  contained  in  the  other  assignments.  R.  v. 
*8581  *'^*^^^^e^'  12  Ad.  &  E.  317,  40  E.  C.  L.  ;  3  Russ.  Cri,  74, 
J  5th  ed.  And  it  has  since  been  held,  by  Tindal,  C.  J.,  that  the 
rule  which  requires  two  Avitnesses,  or  one  witness  and  some  sufficient 
corroboration,  applies  to  every  assignment  of  perjury  in  an  indictment. 
R.  V.  Parker,  Carr.  &  M.  639,  41  E.  C.  L. ;  3  Russ.  Cri.  80,  5th  ed. 
In  R.  V.  Boulter,  2  Den.  C.  C.  R.  396 ;  21  L.  J.,  M.  C.  57,  perjury 
"was  assigned  on  a  statement  made  by  the  prisoner,  upon  a  trial  at 
Nisi  Prius,  that  in  June,  ]851,  he  owed  no  more  than  one  quarter's 
rent  to  his  landlord;  the  prosecutor  swore  that  the  prisoner  owed  five 
quarters'  rent  at  that  date;  and  to  corroborate  the  prosecutor's  evi- 
dence a  witness  was  called,  and  proved  that  in  August,  1850,  the  pris- 
oner had  admitted  to  him  that  he  then  owed  his  landlord  three  or  four 
quarters'  rent.  This  was  held  not  to  be  sufficient  corroborative  evi- 
dence to  warrant  a  conviction,  for  the  money  might  have  been  paid 
intermediately.  In  a  case  of  perjury  on  a  charge  of  bestiality,  the  de-^ 
fendant  swore  that  he  saw  the  prosecutor  committing  the  offence,  and 
saw  the  flap  of  his  trousers  unbuttoned.  To  disprove  this,  the  pros- 
ecutor deposed  that  he  did  not  commit  the  off'ence,  and  that  his  trous- 
ers had  no  flap ;  and  to  confirm  him,  his  brother  proved  that  at  the 
time  in  question  the  prosecutor  Avas  not  out  of  his  presence  more  than 
three  minutes,  and  his  trousers  had  no  flap.  This  Avas  held  by  Pat- 
teson,  J.,  to  be  sufficient  corroborative  evidence  to  go  to  the  jury,  Avho 
found  the  defendant  guilty.  R.  v.  Gardiner,  2  Moo.  C.  C.  95.  j^., 
to  prove  an  alibi  for  B.,  had  SAvorn  that  B.  Avas  not  out  of  his  sight 
between  the  hours  of  8  A.  Jf.  and  9  a.  m,  on  a  certain  day,  and  on 
this  perjury  Avas  assigned;  Patteson,  J.,  lield  that  evidence  by  one  wit- 
ness that  between  those  hours  A.  was  at  one  place  on  foot,  and  by  an- 
other Avitness  that  between  those  hours  B.  was  Avalking  at  another 
place  six  miles  off",  Avas  sufficient  proof  of  the  assignment  of  perjurv. 
R.  V.  Roberts,  2  C.  &  K.  207,  61  E.  C.  L. 

Where  a  statement  by  the  prisoner  himself  is  gi\'en  in  CAndence, 
contradicting  the  matter  sAvorn  to  by  him,  it  has  been  held  not  to  be 
necessary  to  call  two  Avitnesses  to  prove  the  falsity ;  one  witness,  Avith 
proof  of  the  admission,  being  sufficient.  The  defendant  made  infor- 
mation, upon  oath  before  a  justice  of  the  peace,  that  three  women  Avere 
concerned  in  a  riot  at  his  mill  (which  was  dismantled  by  a  mob,  on 


PEKJURY.  1073 

account  of  the  price  of  corn) ;  and  afterwards,  at  the  sessions,  when 
the  rioters  were  indicted,  he  was  examined  concerning  those  women, 
and  having  been  tampered  with  in  their  favor,  he  then  swore  that  they 
were  not  at  the  riot.  There  was  no  other  evidence  on  the  trial  for 
perjury  to  prove  that  the  women  were  in  the  riot  (which  was  the  per- 
jury assigned),  but  the  defendant's  information,  which  was  read.  The 
judge  thought  this  evidence  sufficient,  and  the  defendant  was  convicted 
and  transported.  Anon.,  cor.  Yates,  J.,  and  afterwards  Lord  Mans- 
field, and  Wilmot  and  Aston,  JJ.,  concurred,  5  B.  &  A.  939,  940  (n), 
7  E.  C.  L. ;  3  Russ.  Cri.  76,  5th  ed.  So  in  a  case  where  the  defend- 
ant had  been  convicted  of  perjury,  charged  in  the  indictment,  to  have 
been  committed  in  an  examination  before  the  House  of  Lords,  and 
the  only  evidence  was  a  contradictory  examination  of  the  defendant 
before  a  committee  of  the  House  of  Commons,  application  was 
made  for  a  new  trial,  on  the  ground  that  in  perjury  two  witnesses 
were  necessary,  whereas,  in  that  case,  only  one  witness  had  been 
adduced  to  prove  the  corpus  delicti,  viz.,  the  witness  who  deposed  to 
the  contradictory  evidence  given  by  the  defendant,  before  the  com- 
mittee of  the  House  of  Commons,  and  further,  it  was  insisted  that  the 
*raere  proof  of  a  contradictory  statement  by  the  defendant  on  r^ttorq 
another  occasion  was  not  sufficient,  without  other  circumstances  L 
showing  a  corrupt  motive,  and  negativing  the  probability  of  any  mis- 
take. But  the  court  held,  that  the  evidence  was  sufficient,  the  contra- 
diction being  by  the  party  himself;  and  that  the  jury  might  infer  the 
motive  from  the  circumstance,  and  the  rule  was  refused.  R.  v.  Knill, 
5  B.  &  A.  929,  note  (a),  7  E.  C.  L.  So  w^here  upon  an  indictment 
for  perjury,  in  an  affidavit  made  by  the  defendant,  a  solicitor,  to  oppose 
a  motion  in  the  Court  of  Chancery  to  refer  his  bill  of  costs  for  taxa- 
tion, only  one  Avitness  was  called,  and  in  lieu  of  a  second  witness,  it 
was  proposed  to  put  in  the  defendant's  bill  of  costs,  delivered  by  him 
to  the  prosecutor,  upon  which  it  was  objected  that  this  was  not  suffi- 
cient, the  bill  not  having  been  delivered  on  oath ;  Denman,  C.  J., 
M^as  clearly  of  opinion,  that  the  bill  delivered  by  the  defendant  was 
sufficient  evidence,  or  that  even  a  letter  written  by  the  defendant  con- 
tradicting his  statement  on  oath,  would  be  sufficient  to  make  it  un- 
necessary to  have  a  second  witness.  R.  v.  Mayhew,  6  C.  &  P.  315, 
25  E.  C.  L.  There  appears,  however,  to  be  an  objection  to  this  evi- 
dence, which  is  not  easily  removed,  namely,  that  there  is  nothing  to 
show  which  of  the  statements  made  by  the  defendant  is  the  false  one 
where  no  other  evidence  of  the  falsity  is  given.  Upon  this  subject 
the  following  observations  were  made  by  Plolroyd,  J. :  "  Although 
you  may  believe  that,  on  the  one  or  the  other  occasion  the  prisoner 
swore  what  was  not  true,  it  is  not  a  necessary  consequence  that  he  com- 
mitted perjury ;  for  there  are  cases  in  which  a  person  might  very 
honestly  and  conscientiously  swear  to  a  particular  fact  from  the  best 
of  his  recollection  and  belief,  and  from  other  circumstances,  at  a  sub- 
sequent time,  be  convinced  that  he  was  wrong,  and  swear  to  the  reverse, 
without  meaning  to  swear  falsely  either  time.  Again,  if  a  person 
swears  one  thing  at  one  time,  and  another  at  another,  you  cannot  con- 
68 


1074  PEEJURY. 

vict  where  it  is  not  possible  to  tell  which  is  the  true  and  which  is  the 
false."  11.  V.  Jackson,  1  Lewin,  C.  C.  270.  See  also  K.  v.  Hughes, 
ante,  p.  856.  So  in  R.  v.  Harris,  5  B.  &  A.  926,  7  E,  C.  L.,  the 
court  of  K.  B.  were  of  opinion  (p.  937),  that  pei-jury  could  not  be 
legally  assigned  by  showing  contradictory  depositions  with  an  aver- 
ment that  each  of  them  was  made  knowingly  and  deliberately,  but 
without  averring  or  showing  in  which  of  the  two  depositions  the  false- 
hood consisted.  So  where  the  defendant  was  charged  with  perjury 
committed  on  a  trial  at  the  sessions,  Gurney,  B.,  held  that  a  deposition 
made  by  the  defendant  before  the  magistrate,  entirely  different  from 
what  he  swore  at  the  trial,  was  not  in  itself  sufficient  proof  that  the 
evidence  he  gave  at  the  sessions  was  false,  but  that  other  confirmatory 
proof  must  be  adduced  to  satisfy  the  jury  that  he  swore  falsely  at  the 
trial.  Strong  confirmatory  evidence  having  been  given  of  the  truth 
of  the  deposition,  the  defendant  was  found  guilty.  R.  v.  Wheatland, 
8  C.  &  P.  238,  34  E.  C.  L.  See  Mr.  Greaves's  note  on  this  case,  3 
Russ.  Cri.  77,  5th  ed. 

On  an  indictment  for  perjury,  the  prisoner  was  charged  with  having 
falsely  sworn  that  certain  invoices,  bearing  certain  dates,  were  pro- 
duced by  her  to  one  C.  C.  was  called,  and  sM^ore  that  she  had  not 
produced  the  invoices  which  she  had  deposed  to,  but  that  she  had  pro- 
duced others  :  and  he  produced  a  memorandum  he  had  made  privately 
at  the  time  of  the  dates  of  the  invoices  produced,  which  showed  that 
they  were  not  the  same  as  those  sworn  to  by  the  prisoner.  Cockburn, 
C  J.,  held  that  the  memorandum  was  a  sufficient  corroboration.  R. 
V.Webster,  1  F.  &  F.  515. 

*RC01  *The  prisoner,  who  was  a  policeman,  having  laid  an  infor- 
^  mation  against  a  publican  for  keeping  his  house  open  after  law- 
ful hours,  swore  on  the  hearing  that  he  knew  nothing  of  the  matter, 
except  what  he  had  been  told,  and  that  "  he  did  not  see  any  person 
leave  the  defendant's  house  after  eleven  "  on  the  night  in  question.  It 
was  proved  by  the  magistrate's  clerk  that  the  prisoner,  when  laying 
the  information,  said  that  he  had  seen  four  men  leave  the  house  after 
eleven,  and  that  he  could  swear  to  one  as  W.  It  was  also  proved, 
that  on  two  other  occasions  the  prisoner  made  a  similar  statement  to 
two  other  witnesses,  and  that  W.  and  others  did  in  fact  leave  the  house 
after  eleven  o'clock  on  the  night  in  question.  The  prisoner  moreover 
admitted  at  the  hearing  of  the  summons  that  he  had  received  money 
from  the  publican  to  settle  the  matter.  It  was  held  that  the  evidence 
was  sufficient  to  prove  the  perjury  assigned,  and  that  the  conviction 
was  right.  R.  v.  Hook,  Dears.  &  B.  C.  C.  606  ;  27  L.  J.,  M.  C. 
222.  Benjamin  Linton  was  indicted  for  that  he  applied  to  a  surrogate 
to  grant  a  marriage  licence  and  unlawfully  contriving  to  obtain  such 
licence  in  fraud  of  a  certain  Act,  took  his  oath,  etc.,  before  the  surro- 
gate, and  then  falsely  swore  amongst  other  things  that  he  had  the  con- 
sent of  the  father  of  the  girl  by  which  means  he  unlawfully  obtained 
the  licence.  Archibald,  J.,  York  Spring  Assizes,  1874,  ruled  that  two 
witnesses  of  the  falsity  of  the  allegation  of  consent  were  necessary  ;  for 
that  the  indictment  disclosed  an  offence  similar  to  perjury,  and  that 


PERJURY.  1075 

the  objection  was  that  there  was  only  oath  against  oath.  It  was  true 
the  first  oath  was  not  made  in  a  court  of  justice,  but  if  that  objection 
prevailed  the  father  alone  could  convict  the  husband  of  perjury,  but 
the  husband  could  not  alone  convict  the  father  if  he  falsely  swore  in 
court  that  he  had  not  consented. 

The  folloNving  observations  on  this  subject,  by  an  able  writer  on 
criminal  law,  are  well  deserving  of  attention.  Where  de}X)sitions, 
contrary  to  each  other,  have  beefi  emitted  in  the  same  matter  by  the 
same  person,  it  may  with  certainty  be  concluded  that  one  or  the  other 
is  false.  But  it  is  not  relevant  to  infer  perjury  in  so  loose  a  manner  ; 
the  prosecutor  must  go  a  step  further,  and  specify  distinctly  which  of 
the  two  contains  the  falsehood,  and  peril  his  case  upon  the  means  he 
possesses  of  proving  perjury  in  that  deposition.  To  admit  the 
opposite  course,  and  allow  the  prosecutor  to  libel  on  both  depositions, 
and  make  out  his  charge  by  comparing  them  together,  without  dis- 
tinguishing which  contains  the  truth  and  which  the  falsehood,  would 
be  directly  contrary  to  the  precision  justly  required  in  criminal  pro- 
ceedings. In  the  older  practice  this  distinction  does  not  seem  to  have 
been  distinctly  recognized  ;  but  it  is  now  justly  considered  indis- 
pensable that  the  perjury  should  be  specified  as  existing  in  one,  and 
the  other  deposition  referred  to  in  modum  prohatlonis,  to  make  out, 
along  with  other  circumstances,  where  the  truth  really  lay.  Alison, 
Princ.  Crim.  Law  of  Scot.  475.  These  remarks  are  applicable  to  the 
cases  in  our  law,  in  which  the  evidence  of  one  witness,  viz.,  the  party 
producing  the  contradictory  statement,  and  the  statement  itself,  have 
been  allowed  as  sufficient  evidence  to  prove  the  falsity  of  the  oath. 
Such  statements  may  be  used  as  strong  corroborations  of  the  prose- 
cutor's case,  and  as  such  they  are  admitted  in  the  Scotch  law.  A 
party  cannot  be  convicted  (says  Mr.  Alison)  of  perjury,  upon  the  evi- 
dence merely  of  previous  or  subsequent  declarations  emitted  by  him, 
inconsistent  with  what  he  has  sworn  ;  because  in  dubio  it  must  be 
presumed  that  what  was  said  under  the  sanction  of  an  oath  was  the 
*truth,  and  the  other  an  error  or  falsehood,  but  both  such  dec-  r*o/.-i 
larations  and  written  evidence  under  his  hand,  inconsistent  ■- 
with  what  he  has  sworn,  form  important  articles,  which,  with  others, 
will  be  sufficient  to  make  the  scales  of  evidence  preponderate  against 
him.     Principles  of  Crim.  Law  of  Scot.  481. 

Statutes  relating  to  perjury.  The  principal  statutory  enactment 
respecting  perjury  is  the  5  Eliz.  c.  9  (the  28  Eliz.  c.  1,  L),  the  opera- 
tion of  which  is,  howev^er,  more  confined  than  that  of  the  common 
law  ;  and  as  it  does  not  (see  the  5  Eliz.  c.  9,  s.  1 3)  restrain  in  any 
manner  the  punishment  of  perjury  at  common  law,  it  has  seldom 
been  the  practice  to  proceed  against  offenders  by  indictment  under 
this  statute. 

By  s.  3,  the  procuring  any  witness  to  commit  perjury  in  any  mattei 
in  suit,  by  writ,  etc.,  concerning  any  lands,  goods,  etc.,  or  when  sworn 
in  perpetuam  rei  memoriam.  is  punishable  by  the  forfeiture  of  forty 
pounds. 


1076  PERJURY. 

Sect.  5  enacts,  that  no  person  or  persons,  being  so  convicted  or 
attainted,  be  from  tliencefbrth  received  as  a  witness  to  be  deposed  and 
sworn  in  any  court  of  record  (within  England,  Wales,  or  the  marches 
of  the  same),  until  such  time  as  the  judgment  given  against  the  said 
person  or  persons  shall  be  reversed  by  attaint  or  otherwise ;  and  that 
upon  every  such  reversal,  the  parties  grieved  to  recover  his  or  their 
damages  against  all  and  every  such  person  and  persons  as  did 
procure  the  said  judgment  so  reversed,  to  be  first  given  against 
them,  or  any  of  them,  by  action  or  actions  to  be  sued  upon  his  or 
their  case  or  cases,  according  to  the  course  of  the  common  laws  of 
the  realm. 

Sect.  6  enacts,  that  if  any  person  or  persons,  either  by  the  subor- 
nation, unlawful  procurement,  sinister  persuasion,  or  means  of  any 
others,  or  by  their  own  act,  consent,  or  agreement,  wilfully  and  cor- 
ruptly commit  any  manner  of  wilful  perjury,  by  his  or  their  depo- 
sition in  any  of  the  courts  before  mentioned,  or  being  examined  ad 
pe7'petuam  rei  memoriam,  that  then  every  person  or  persons  so  offend- 
ing, and  being  thereof  duly  convicted  or  attainted  by  the  laws  of 
this  realm,  shall  for  his  or  their  said  offence  lose  and  forfeit  twenty 
pounds,  and  to  have  imprisonment  by  the  space  of  six  months,  with- 
out bail  or  mainprize  ;  and  the  oath  of  such  person  or  persons  so 
offending,  from  thenceforth  not  to  be  received  in  any  court  of  record 
within  this  realm  of  England  and  Wales,  or  the  marches  of  the  same, 
until  such  time  as  the  judgment  given  against  the  said  person  or  per- 
sons shall  be  reversed  by  attaint  or  otherwise  ;  and  that,  upon  every 
such  reversal,  the  parties  grieved  to  recover  his  or  their  damages 
against  all  and  every  such  person  and  persons  as  did  procure  the  said 
judgment  so  reversed  to  be  given  against  them,  or  any  of  them,  by 
action  or  actions  to  be  sued  upon  his  or  their  case  or  cases,  according 
to  the  course  of  the  common  lawa  of  this  realm. 

It  appears  that  a  person  cannot  be  guilty  of  perjury  within  the 
meaning  of  this  statute,  in  any  case  wherein  he  may  not  be  guilty 
of  subornation  of  perjury  within  the  same  statute,  and  as  the  subor- 
nation of  perjury  there  mentioned,  extends  only  to  subornation  "  in 
matters  depending  in  suit  by  writ,  action,  bill,  plaint,  or  information, 
in  anywise  concerning  lands,  tenements,  or  hereditaments,  or  goods, 
chattels,  debts,  or  damages,  etc.,"  no  perjury  upon  an  indictment  or 
criminal  information  can  bring  a  man  within  the  statute.     Hawk. 

*8621  *"^'^'  ^'  ^'  ^'  ^^'  ^'  ^^  '  Bac.  Ab.  Perjury  (B).  The  statute 
J  only  extends  to  perjury  by  witnesses,  and  therefore  no  one  comes 
within  the  statute  by  reason  of  a  false  oath  in  an  answer  to  a  bill  in 
chancery,  or  by  swearing  the  peace  against  another,  or  in  a  presentment 
made  by  him  as  homager  of  a  court  baron,  or  for  taking  a  false  oath 
before  commissioners  appointed  by  the  king.  Hawk.  P.  C  b.  1,  c. 
69,  s.  20.  It  seems  that  a  false  oath  taken  before  the  sheriff,  on  an 
inquiry  of  damages,  is  within  the  statute.  Id.  s.  22.  No  false  oath 
is  within  the  statute  which  does  not  give  some  person  a  just  cause  of 
complaint ;  for  otherwise  it  cannot  })e  said  that  any  person  was 
grieved,  hindered,  or  molested.     In  every  prosecution  on  the  statute, 


PERJURY.  1077 

therefore,  it  is  necessary  to  set  forth  the  record  of  the  cause  wlierein 
the  perjury  complained  of  is  supposed  to  have  been  committed,  and 
also  to  prove  at  the  trial  of  the  cause,  that  there  is  actually  such  a 
record,  by  producing  it,  or  a  true  copy  of  it,  which  must  agree  with 
that  set  forth  in  the  pleadings,  without  any  material  variance  ;  other- 
wise it  cannot  legally  appear  that  there  ever  was  such  a  suit  deperid- 
ing,  wherein  the  party  might  be  prejudiced  in  the  manner  supposed. 
If  the  action  was  by  more  than  one,  the  false  oath  must  appear  to 
have  been  prejudicial  to  all  the  plaintiffs.  Hawk.  P.  C.  b.  1,  c.  69, 
s.  23;  Bac.  Ab.  Perjury  (B);  3  Russ.  Cri.  33,  5th  ed. 

Various  provisions  for  facilitating  the  punishment  of  persons  guilty 
of  perjury  are  contained  in  the  14  &  15  Vict.  c.  100,  sect.  19,  which 
provides  that  any  court,  judge,  justice,  etc.,  may  direct  a  person  guilty 
of  perjury  in  any  evidence,  etc.,  to  be  prosecuted.  By  sect.  20,  in- 
dictments for  perjury  are  simplified.  By  sect.  21  an  indictment  for 
subornation  of  perjury  is  simplified.  See  these  sections  in  the  Ap- 
pendix. 

Sect.  22  enacts  that  "a  certificate  containing  the  substance  and 
effect  only  (omitting  the  formal  part)  of  the  indictment  and  trial  for 
any  felony  or  misdemeanor,  purporting  to  be  signed  by  the  clerk  of 
the  court  or  other  officer  having  the  custody  of  the  records  of  the 
court  where  such  indictment  was  tried,  or  by  the  deputy  of  such  clerk 
or  other  officer  (for  which  certificate  a  fee  of  six  shillings  and  eight- 
pence  and  no  more  shall  be  demanded  or  taken),  shall,  upon  the  trial 
of  any  indictment  for  perjury  or  subornation  of  perjury,  be  sufficient 
evidence  of  the  trial  of  such  indictment  for  felony  or  misdemeanor, 
without  proof  of  the  signature  or  official  character  of  the  person  appear- 
ing to  have  signed  the  same." 

By  the  22  &  23  Vict.  c.  17,  supra,  p.  192,  no  indictment  for  perjury 
or  subornation  of  perjury  is  to  be  preferred  without  previous  autho- 
rization. 

But  see  now  30  &  31  Vict.  c.  35,  s.  1,  in  Appendix. 

A  person  having  given  evidence  at  a  trial,  the  judge  did  not  give 
any  direction  to  prosecute  him  for  perjury.  No  application  was 
made  to  the  judge  for  his  consent  at  the  time  of  the  alleged  perjury, 
but  some  days  afterwards  the  prosecutor's  attorney  went  before  the 
judge  without  summons  or  affidavit,  and  laid  before  him  a  newspaper 
containing  a  report  of  the  trial.  The  judge  wrote  upon  it,  "  I  consent 
to  the  prosecution  of  this  case,"  and  signed  his  name;  this  was  held 
to  be  a  sufficient  consent  within  the  Act.  R.  v.  Bray,  3  B.  &  S.  255, 
113  E.  C.  L.;  32  L.  J.,  M.  C.  11. 

In  various  statutes  clauses  have  been  inserted  whereby  the  giving 
of  false  evidence  in  respect  of  the  matters  with  which  the  statute  deals 
is  made  perjury  or  is  made  punishable  as  perjury. 

*Thus  by  the  5  &  6  Will.  4,  c.  62,  ss.  5,  21,  and  see  ante,  p.   r*o/:>o 
490,  false  declarations  relating  to  the  revenue  and  other  mat-   *- 
ters  are  made  misdemeanors.     So  also  by  the  27   &  28   Vict.  c.   19, 
persons  giving  false  evidence  upon  courts  martial  are  deemed  guilty  of 
perjury  (see  R.  v.  Heane,  ante,  p.  843).     So  by  the  Debtors  Act  (32  & 


1078  PERJURY. 

33  Vict.  c.  62,  s.  14),  a  creditor  making  false  statements  is  guilty  of 
a  misdemeanor.  So  under  the  Marriage  Acts  persons  making  false 
declarations  are  liable  to  the  penalties  of  perjury  (see  19  &  20  Vict.  c. 
119,  ss.  2, 18).  False  evidence  given  on  oath  before  a  referee  appointed 
under  the  Agricultural  Holdings  Act,  1875  (38  &  39  Vict.  c.  92)  is  by 
s.  26  made  the  subject  of  perjury ;  also  under  the  Agricultural  Hold- 
ings Act,  1883  (46  &  47  Vict.  c.  61,  see  sect.  13);  also  l)y  parliamen- 
tary candidate  or  election  agent,  under  46  &  47  Vict.  c.  51,  s.  33  (7). 
So  also  before  Public  Works  Loan  Commissioners  under  38  &  39  Vict, 
c.  89,  s.  44.  Also  before  inquiries  held  by  direction  of  the  Commis- 
sioners of  Customs,  39  &  40  Vict.  c.  36,  s.  36.  (And  see  also  "  False 
Declarations,"  ante,  p.  490.) 

Punishment.  Perjury  is  punishable  at  common  law  with  fine  and 
imprisonment,  at  the  discretion  of  the  court. 

By  the  2  Geo.  2,  c.  25,  s.  2,  "the  more  effectually  to  deter  persons 
from  committing  wilful  and  corrupt  perjury  or  subornation  of  per- 
jury," it  is  enacted,  that  "  besides  the  punishment  already  to  be  in- 
flicted by  law  for  so  great  crimes,  it  shall  and  may  be  lawful  for  the 
court  or  judge  before  whom  any  person  shall  be  convicted  of  wilful 
and  corrupt  perjury,  or  subornation  of  perjury,  according  to  the  laws 
now  in  being,  to  order  such  person  to  be  sent  to  some  house  of  cor- 
rection within  the  same  covinty,  for  a  time  not  exceeding  seven  years, 
there  to  be  kept  to  hard  labor  during  all  the  said  time,  or  otherwise  to 
be  transported  to  some  of  his  Majesty's  plantations  beyond  the  seas, 
for  a  term  not  exceeding  seven  years,  as  the  court  shall  think  most 
proper ;  and  thereupon  judgment  shall  be  given,  that  the  person  con- 
victed shall  be  committed  or  transported  accordingly,  over  and  beside 
such  punishment  as  shall  be  adjudged  to  be  inflicted  on  such  person 
agreeable  to  the  laws  now  in  being  ;  and  if  transportation  be  directed, 
the  same  shall  be  executed  in  such  manner  as  is  or  shall  be  provided 
by  law  for  the  transportation  of  felons  ;  and  if  any  person  so  com- 
mitted or  transported  shall  voluntarily  escape  or  break  prison,  or  re- 
turn from  transportation,  before  the  expiration  of  the  time  for  which 
he  shall  be  ordered  to  be  transported  as  aforesaid,  such  person  being 
thereof  lawfully  convicted  shall  suffer  death  as  a  felon  without  benefit 
of  clergy,  and  shall  be  tried  for  such  felony  in  the  county  wdiere  he  so 
escaped,  or  where  he  shall  l)e  apprehended." 

By  the  3  Geo.  4,  c.  114  (the  7  Geo.  4,  c.  9,  I.),  persons  guilty  of 
perjury  or  subornation  of  perjury  may  be  sentenced  to  hard  labor. 

By  the  7  Will.  4  &  1  Vict.  c.  23  (U.  K.),  the  punishment  of  the 
pillory  is  abolished. 

Postponing  trials  for  perjury.  It  is  the  practice  at  the  Central 
Criminal  Court  not  to  try  an  indictment  for  perjury  arising  out  of  a 
civil  suit,  while  that  suit  is  in  any  way  undetermined,  except  in  cases 
where  the  court  in  which  it  is  pending  postpone  the  decision  of  it,  in 
order  that  the  criminal  charge  may  be  first  disposed  of.  E.  v.  Ash- 
burn,  8  C.  &  P.  50,  34  E.  C.  L. 


PERJURY.  1079 

♦subornation  of  perjury.  [*864 

Subornation  of  perjury,  at  common  law,  is  the  procuring  a  man 
to  take  a  false  oath  amounting  to  perjury,  the  man  actually  taking 
such  oath  ;  but  if  he  do  not  actually  take  it,  the  person  by  whom  he 
was  incited  is  not  guilty  of  subornation  of  perjury;  yet  he  may  be 
punished  by  fine  and  corporal  punishment.'  Hawk.  P.  C.  b.  1,  c. 
69,  s.  10. 

Upon  an  indictment  for  subornation  of  perjury,  the  prosecutor  must 
prove,  1,  the  inciting  by  the  defendant,  and  that  he  knew  that  the  evi- 
dence to  be  given  was  false  ;  and  2,  the  taking  of  the  false  oath  by  the 
witness,  etc.  See  now  14  &  15  Vict.  c.  100,  s.  21,  ante,  p.  862,  and 
see  the  Statutes  in  Appendix. 

Proof  of  the  incitement.  The  incitement  may  be  proved  by 
calling  the  party  who  was  suborned.  The  knowledge  of  the  defend- 
ant that  the  evidence  about  to  be  given  would  be  false  will  probably 
appear  from  the  evidence  of  the  indictment,  or  it  may  be  collected  fi'om 
other  circumstances. 

Proof  of  the  taking  of  the  false  oath.  In  general  the  proof  of 
the  perjury  will  be  the  same  as  upon  an  indictmentfor  perjury,  against 
the  witness  who  perjured  himself;  and  even  if  the  latter  has  been  con- 
victed, it  will  not,  as  it  seems,  be  sufficient  against  the  party  who  had 
suborned  him,  to  prove  merely  the  record  of  the  conviction  ;  but  the 
whole  evidence  must  be  gone  into  as  upon  the  former  trial.  The  de- 
fendant was  indicted  for  procuring  one  John  Macdaniel  to  take  a  false 
oath.  To  prove  the  taking  of  the  oath  by  Macdaniel,  the  record  of 
his  conviction  for  perjury  was  produced.  But  it  was  insisted  for  the 
defendant,  that  the  record  was  not  of  itself  sufficient  evidence  of  the 
fact ;  that  the  jury  had  a  right  to  be  satisfied  that  such  conviction  was 
correct ;  that  the  defendant  had  a  right  to  controvert  the  guilt  of  Mac- 
daniel, and  that  the  evidence  given  on  the  trial  of  the  latter  ought  to 
be  submitted  to  the  consideration  of  the  present  jury.  The  recorder 
obliged  the  counsel  for  the  crown  to  go  through  the  whole  case  in  the 
same  manner  as  if  the  jury  had  been  charged  to  try  Macdaniel.    R.  v. 

^  Case  of  Francis  et  al.,  1  Kog.  Eec.  121.  Subornation  of  perjury  may  be  proved 
by  the  testimony  of  one  witness.  Commonwealth  v.  Douglass,  5  Mete.  241.  Though 
a  party  who  is  charged  with  subornation  of  perjury,  knew  that  the  testimony  of  a 
witness  whom  he  called  would  be  false,  yet  if  he  did  not  know  that  the  witness  would 
wilfully  testify  to  a  fact  knowing  it  to  be  false,  he  cannot  be  convicted  of  tlie  crime 
charged.  To  constitute  subornation  of  peijury,  the  party  charged  must  procure  the 
comm  ssion  of  the  perjury  by  inciting,  instigating  or  persuading  the  witness  to  com- 
mit the  crime.  Commonwealth  v.  Douglass,  5  Mete.  241.  On  the  trial  of  A.  for 
suborning  B.  to  commit  perjury  on  a  former  trial  of  A.  for  another  ofibnce,  a  witness 
testified  that  B.  on  that  former  trial,  swore  that  he  came  from  L.  as  a  witness  on  that 
trial  in  consequence  of  a  letter  written  to  him  by  A.  Held,  that,  although  this  was 
not  evidence  that  A.  wrote  such  letter  to  B.,  yet  it  was  evidence  that  B.  so  testified  in 
the  presence  of  A.,  and  as  A.  thereby  had  an  opportunity  to  prove,  but  di<l  not  prove, 
on  the  trial  for  suborning  B.,  in  what  manner  or  by  whose  agency  B.  came  from  L., 
such  testimony  of  B.  might  be  considered  by  the  jury  in  connection  with  the  other 
evidence  in  the  case.    Id.    S. 


1080  PERJURY. 

Reilly,  1  Leach,  455.  Upon  this  case  Mr.  Starkie  has  made  the 
followiifg  observations : — This  authority  seems  at  first  sight  to  be 
inconsistent  with  that  class  of  cases  in  which  it  has  been  held  that 
as  against  an  accessory  before  the  fact  to  a  felony,  the  record  of  the 
conviction  of  the  principal  is  evidence  of  the  fact.  If  the  prisoner, 
instead  of  being  indicted  as  a  principal,  in  procuring,  etc.,  had  been 
indicted  as  accessory  before  the  fact,  in  procuring,  etc.,  the  record 
would  clearly  have  been  good  primd  facie  evidence  of  the  guilt  of 
the  principal.  It  is,  however,  to  be  recollected  that  this  doctrine  rests 
rather  upon  technical  and  artificial  grounds  than  on  any  clear  and 
satisfactory  principle  of  evidence.  2  Stark.  Ev.  627,  2nd  ed.  It 
may  also  be  observed  that  the  indictment  for  subornation  of  per- 
jury does  not  set  forth  the  conviction  of  the  party  who  took  the 
false  oath,  but  only  the  preliminary  circumstances  and  the  taking  of 
the  oath  ;  forming  an  allegation  of  the  guilt  of  the  party,  and  not  of 
his  conviction  ;  and  in  R.  v.  Turner,  1  Moo.  C.  C.  347,  ante,  pp.  53, 
56,  the  judges  expressed  a  doubt  whether,  if  an  indictment  against  a 
*8fi  ^1  *^6cei ver  stated,  not  the  conviction,  but  the  guilt  of  the  princi- 
-l  pal  felon,  the  record  of  the  conviction  of  the  principal  would 
be  sufficient  evidence  of  the  guilt. 

Perjury  and  subornation  of  perjury  are  made  extradition  crimes  by 
36  &  37  Vict.  c.  60,  sched. 


PEKSONATION,  See  False  Peesonation,  ante,  p.  493. 


PIGEONS.  1081 


♦PIGEONS. 


[*866 


It  has  been  seen  (ante,  pp.  526,  527)  (hat  larceny  may  be  commit- 
ted of  tame  pigeons  even  although  unconfincd  ;  and  by  the  24  &  25 
Vict.  c.  96,  s.  23,  it  is  provided,  that  "  whosoever  shall  unlawfully  and 
wilfully  kill,  wound,  or  tiike  any  house  dove  or  pigeon,  under  such 
circumstances  as  shall  not  amouut  to  larceny  at  common  law,  sliall,  on 
conviction  before  a  justice  of  the  peace,  forfeit  and  pay  over  and  above 
the  vakie  of  the  bird  any  sum  not  exceeding  two  pounds." 

Where  A.  gave  notice  to  fi.  that  if  B.'s  pigeons  continued  to  come 
on  to  his  laud  he  would  shoot  them,  and  he  afterwards  did  shoot  one 
and  left  it  on  the  ground,  it  was  held  that  this  was  not  an  unlawful 
killing  Avithin  the  meaning  of  the  statute,  for  the  section  applies  only 
to  such  acts  as  would  be  of  the  nature  of  larceny,  supposing  pigeons 
could  be  the  subject  of  larceny.  Taylor  v.  Newman,  4  B.  &  S.  89, 
116  E.  C.  L.;  32  L.  J.,  M.  C.  186.  (See  this  case  approved  of  in 
Hudson  V.  Macrae,  4  B.  &  S.  592,  116  E.  C.  L.) 


1082  PIRACY. 


*3g7l  *PIEACY. 

PAGE 

OiFence  at  common  law        ...•••<••  867 

Stat.  11  &  12  Will  3,  c.  7 *        .  867 

8  Geo.  1,  c.  24 868 

18  Geo.  2,  c.  30         •...,....  868 

5  Geo.  4,  c.  113 — dealing  in  slaves 868 

Proof  of  the  piracy 869 

with  regard  to  the  persons  guilty 870 

with  regard  to  accessories 870 

Venue  and  trial 871 

Punishment  under  the  7  Will.  4  &  1  Vict.  c.  88      .        *        .        .  871 

Offence  at  common  law.  The  offence  of  piracy  at  common  law 
consists  in  committing  those  acts  of  robbery  and  depredation  upon 
the  high  seas,  which,  if  committed  on  land,  would  have  amounted  to 
felony  there  ;  though  it  was  no  felony  at  common  law.  2  East,  P.  C. 
796  ;  4  Bl.  Com.  72  ;  Hawk.  P.  C.  c.  37,  s.  4.^  Before  the  28  Hen.  8, 
c.  15,  the  oifence  was  only  punishable  by  the  civil  law,  and  that 
statute  does  not  render  it  a  felony.  By  other  statutes,  however, 
which  will  be  presently  noticed,  the  offence  is  made  felony,  and  the 
nature  of  the  offence  which  shall  constitute  piracy  is  specifically 
described. 

"  Tlie  offence  of  piracy  at  common  law  is  nothing  more  than 
robbery  upon  the  high  seas  ;  but  by  statutes  passed  at  various  times, 
and  still  in  force,  many  artificial  offences  have  been  created,  which 
are  to  be  deemed  to  amount  to  piracy."  Report  of  Comm.  of  Crim. 
Law. 

Stat.  11  &  12  Will.  3,  c.  7.  By  the  11  &  12  Will.  3,  c.  7  (E.)  s.  8, 
"  if  any  of  his  Majesty's  natural-born  subjects  or  denizens  of  this 
kingdom  shall  commit  any  piracy  or  robbery,  or  any  act  of  hostility 
against  others,  his  Majesty's  subjects  upon  the  sea,  under  color  of 
any  commission  from  any  foreign  prince  or  state,  or  pretence  of 
authority  from  any  person  whatsoever,  such  offender  or  offenders 
shall  be  deemed,  adjudged,  and  taken  to  be  pirates,  felons,  and 
robbers,  etc." 

By  s.  9,  "  if  any  commander,  or  master  of  any  ship,  or  any  seaman 
or  mariner,  shall  in  any  place  where  the  admiral  has  jurisdiction, 
betray  his  trust,  and  turn  pirate,  enemy,  or  rebel,  and  piratically 
and  feloniously  run  away  with  his,  or  their  ship  or  ships,  or  any 
barge,  boat,  ordnance,  ammunition,  goods,  or  merchandise,  or  yield 
them  up  voluntarily  to  any  pirate ;  or  shall  bring  any  seducing  mes- 

*  United  States  r.  Chapels  et  al.,  3  Wheel.  C.  C.  205  ;  1  Kent's  Comm.,  lecture  ix, 
Mr.  Duponceau's  translation  of  Bynhershoeck  on  War,  c.  17,  p.  128,  n;  Bass's  Case, 
4  Rog.  Rec.  161  •  2  Wheel.  C.  C.  Preface,  p.  xxvii.    S. 


PIRACY.  1083 

sage  from  any  pirate,  enemy,  or  rebel ;  or  consult,  combine,  or  con- 
federate with,  or  attempt,  or  endeavor  to  corrupt  any  commander, 
master,  officer,  or  mariner,  to  yield  up,  or  run  away  with  any  ship 
*goods,  or  merchandise,  or  turn  pirates  ;  or  go  over  to  pirates  ;  r:i:onn 
or  if  any  person  shall  lay  violent  hands  on  his  commander,  L 
whereby  to  hinder  him  from  iigiiting  in  defence  of  his  ship  and  goods 
committed  to  his  trust,  or  shall  confine  his  master,  or  make,  or  en- 
deavor to  make,  a  revolt  in  his  ship,  he  shall  be  adjudged,  deemed,  and 
taken  to  be  a  pirate,  felon,  and  robber  [and  sufiei-  death,"  etc.]. 

Upon  the  above  section  (9)  of  the  11  &  12  Will.  3,  c.  7,  it  has  been 
decided  by  a  court  of  twelve  judges,  that  the  making,  or  endeavoring 
to  make,  a  revolt  on  board  a  ship,  with  a  view  to  procure  a  redress  of 
what  the  prisoners  may  think  grievances,  and  without  any  intent  to 
run  away  with  the  ship,  or  to  commit  any  act  of  piracy,  is  an  offence 
within  the  statute.     R.  v.  Hasting,  1  Moo.  C.  C.  82. 

Stat.  8  Geo.  1,  c.  24.  By  the  8  Geo.  1,  c.  24  (E.),  s.  1,  "  in  case  any 
person  or  persons  belonging  to  any  ship  or  vessel  whatsoever,  upon 
meeting  any  merchant  ship  or  vessel  on  the  high  seas,  or  in  any  port, 
haven,  or  creek  whatsoever,  shall  forcibly  board  or  enter  into  such 
ship  or  vessel,  and,  though  they  do  not  seize  or  carry  off  such  ship  or 
vessel,  shall  throw  overboard  or  destroy  any  part  of  the  goods  or 
merchandise  belonging  to  such  ship  or  vessel,  the  person  or  persons 
guilty  thereof  shall  in  all  respects  be  deemed  and  punished  as  pirates 
as  aforesaid." 

And  by  the  same  section,  "if  any  commander  or  master  of  any  ship 
or  vessel,  or  any  other  person  or  persons,  shall  anywise  trade  with 
any  pirate,  by  truck,  barter,  exchange,  or  in  any  other  manner,  or 
shall  furnish  any  pirate,  felon,  or  robber  upon  the  seas,  with  any 
ammunition,  provision,  or  stores  of  any  kind ;  or  shall  fit  out  any 
ship  or  vessel  knowingly,  and  with  a  design  to  trade  with  any  pirate, 
felon,  or  robber  upon  the  seas  :  or  if  any  person  or  persons  shall  any- 
ways consult,  combine,  confederate  or  correspond  with  any  pirate, 
felon,  or  robber  on  the  seas,  knowing  him  to  be  guilty  of  such  piracy, 
felony,  or  robbery, — every  such  offender  shall  be  deemed  and  adjudged 
guilty  of  piracy,  felony,  and  robbery." 

Stat.  18  Geo,  2,  c.  30.  By  the  18  Geo.  2,  c.  30  (E.),  all  persons 
being  natural-born  subjects  or  denizens  of  his  Majesty,  who,  during 
any  war,  shall  commit  any  hostilities  upon  the  sea,  or  in  any  haven, 
river,  creek,  or  place  where  the  admiral  or  admirals  have  power,  au- 
thority, or  jurisdiction,  against  his  Majesty's  subjects,  by  virtue  or 
under  color  of  any  commission  from  any  of  his  Majesty's  enemies,  or 
shall  be  any  other  ways  adherent,  or  giving  aid  or  comfort  to  his 
Majesty's  enemies  upon  the  sea,  or  in  any  haven,  river,  creek,  or  place 
where  the  admiral  or  admirals  have  power,  etc.,  may  be  tried  as  pirates, 
felons,  and  robbers  in  the  court  of  admiralty,  in  the  same  manner  as 
pirates,  etc.,  are  by  the  said  Act  (11  &  12  Will.  3)  directed  to  be  tried, 
[and  shall  suffer  death]. 


1084  PIRACY. 

Under  this  statute  it  has  been  held,  that  persons  adhering  to  the 
king's  enemies,  by  cruising  in  their  ships,  may  be  tried  as  pirates 
under  the  usual  commission  granted  by  virtue  of  the  statute  28  lien, 
8.     R.  V.  Evans,  2  East,  P.  C.  798. 

Stat.  5  Geo.  4,  c.  113 — dealing  in  slaves.  By  the  5  Geo.  4,  c.  11.3 
(U.  K.),s.  9,  the  carrying  away,  conveying,  or  removing  of  any  person 
upon  the  high  seas  for  the  }>urpose  of  his  being  imported  or  brought 
into  any  place  as  a  slave,  or  being  sold  or  dealt  with  as  such,  or  the 
embarking  or  receiving  on  board  any  person  for  such  purpose,  is  made 
*8r9l  *P^^'^^y>  felony,  and  robbery,  punishable  with  death.  By  sect. 
-I  10,  the  dealing  in  slaves,  and  other  offences  connected  therewith, 
are  made  felony. 

Now,  by  the  7  Will.  4  &  1  Vict.  c.  91  (U.  K.),  the  punisliracnt  of 
death,  imposed  by  the  ninth  section  of  the  above  statute,  is  abolished, 
and  transportation  for  life,  etc.,  substituted. 

The  provisions  of  the  statute  5  Geo.  4,  c.  113,  are  not  confined  to 
acts  done  by  British  subjects  in  furtherance  of  the  slave  trade  in 
England  or  the  British  colonies,  but  apply  to  acts  done  by  British 
subjects  in  furtherance  of  that  trade  in  places  which  do  not  form  part 
of  the  British  dominions.  Per  Maule  and  Wightman,  JJ.,  R.  v. 
Zulueta,  1  C.  &  K.  215,  47  E.  C.  L.  In  order  to  convict  a  party 
wdio  is  charged  with  having  employed  a  vessel  for  the  purpose  of  slave 
trading,  it  is  not  necessary  to  show  that  the  vessel  which  carried  out 
the  goods  was  intended  to  be  used  for  bringing  back  slaves  in  return ; 
but  it  will  be  sufficient  if  there  was  a  slave  adventure,  and  the 
vessel  was  in  any  way  engaged  in  the  advancement  of  that  adventure. 
Id. 

On  the  26th  February,  1845,  the  Felicidade,  a  Brazilian  schooner, 
fitted  up  as  a  slaver,  surrendered  to  the  armed  boats  of  her  Majesty's 
ship  Wasp.  She  had  no  slaves  on  board.  The  captain  and  all  his 
crew,  except  Majaval  and  three  others,  were  taken  out  of  her  and  put 
on  board  the  Wasp.  On  the  27th  February,  the  three  others  were 
taken  out  and  put  on  board  the  Wasp  also.  Cerqueira,  the  captain, 
was  sent  back  to  the  Felicidade,  which  was  then  manned  with  sixteen 
British  seamen,  and  placed  under  the  command  of  lieutenant  Stupart. 
The  lieutenant  was  directed  to  steer  in  pursuit  of  a  vessel  seen  from 
the  Wasp,  which  eventually  turned  out  to  be  the  Echo,  a  Brazilian 
brigantine,  having  slaves  on  board,  and  commanded  by  Serva,  one  of 
the  prisoners.  After  a  chase  of  two  days  and  nights,  the  Echo  sur- 
rendered, and  was  then  taken  possession  of  by  Mr.  Palmer,  a  mid- 
shipman, who  went  on  board  her,  and  sent  Serva  and  eleven  of  the 
crew  of  the  Echo  to  the  Felicidade.  The  next  morning  lieutenant 
Stupart  took  command  of  the  Echo,  and  placed  Mr.  Palmer  and  nine 
British  seamen  on  board  the  Felicidade  in  charge  of  her  and  the  pris- 
oners. The  prisoners  shortly  after  rose  on  Mr.  Palmer  and  his  crew, 
killed  tliem  all,  and  ran  away  with  the  vessel.  She  was  recaptured 
by  a  British  vessel,  and  the  prisoners  were  brought  to  this  country, 
and  tried  at  Exeter  for  murder.     The  jury  found  them  guilty.     The 


PIRACY.  1085 

foundation  of  the  conviction  pursuant  to  the  summing  up  of  the 
learned  baron  (Piatt),  who  tried  the  case,  was  that  the  Felicidade  was 
in  the  lawful  custody  of  her  Majesty's  officers,  that  all  on  board  that 
vessel  were  within  her  Majesty's  admirahy  jurisdiction  ;  and  that  the 
jury  should  find  the  prisoners  guilty  of  murder,  if  satisfied  by  the 
evidence  that  they  plotted  together  to  slay  all  the  P]nglish  on  board, 
and  run  away  with  the  vessel  ;  that,  in  carrying  their  design  into 
execution,  Majaval  slew  Mr.  Palmer,  by  stabbing  him  and  throwing 
him  overboard,  and  that  the  other  prisoners  were  present,  aiding  and 
assisting  Majaval  in  the  couuuission  of  the  murder.  On  a  case 
reserved  for  the  opinion  of  the  judges,  objections  to  these  points 
were  argued  by  the  counsel  for  the  prisoners,  and  the  conviction 
was  held  to  be  wrong.  Reg.  v.  Serva  and  others,  1  Den.  C.  C.  E,. 
104. 

Proof  of  the  piracy.  The  prosecutor  must  give  evidence  of  facts, 
*which,  had  the  transaction  occurred  within  the  body  of  a  county,  r*v.r-rv 
would  have  rendered  the  oifender  guilty  of  larceny  or  robbery  >- 
at  common  law.  He  must  therefore  show  a  taking  animo  furandi  and 
lucri  causd.  It  is  said  that  if  a  ship  is  attacked  by  a  pirate,  and  the 
master,  for  her  redemption,  gives  his  oath  to  pay  a  certain  sum,  though 
there  is  no  taking,  yet  it  is  piracy  by  the  law  marine,  but  by  the  com- 
mon law  there  must  be  an  actual  taking,  though  but  to  the  value  of  a 
penny,  as  in  robbery.  1  Beawes,  Lex  Merc.  25,  citing  44  Edw.  3, 
14,  4  Hen.  4.  If  a  ship  is  riding  at  anchor,  with  part  of  the  marines 
in  her  boat,  and  the  rest  on  shore,  so  that  none  remain  in  the  ship,  if 
she  be  attacked  and  robbed,  it  is  piracy.  1  Beawes,  Lex  Merc.  253, 
citing  14  Edw.  3,  115. 

Proof  with  regard  to  the  persons  guilty  of  piracy.  The  subject 
of  a  foreign  power  in  amity  with  this  country  may  be  punished  for 
piracy  committed  upon  English  property.  1  Beawes,  Lex  Merc.  251. 
A  person  having  a  special  trust  of  goods  will  not  be  guilty  of  piracy 
by  converting  them  to  his  own  use ;  as  where  the  master  of  a  vessel 
with  goods  on  board,  ran  the  goods  on  shore  in  England,  and  burnt 
the  ship  with  intent  to  defraud  the  owners  and  insurers,  on  an  indict- 
ment for  piracy  and  stealing  the  goods,  it  Avas  held  to  be  only  a  breach 
of  trust,  and  no  felony,  and  that  it  could  not  be  piracy  to  convert  the 
goods  in  a  fraudulent  manner,  until  the  special  trust  was  determined. 
R.  V.  Mason,  2  East,  P.  C.  796  ;  Mod.  74.  But  it  is  otherwise  Avith 
regard  to  the  mariners.  Thus  where  several  seamen  on  board  a  ship 
seized  the  captain,  he  not  agreeing  with  them,  and  after  putting  him 
ashore,  carried  away  the  ship,  and  subsequently  committed  several 
piracies,  it  was  held  that  this  force  upon  the  captain,  and  carrying 
away  the  ship,  was  piracy.  R.  v.  May,  2  East,  P.  0.  796.  The  pris- 
oners Avere  con\'icted  upon  a  count  charging  them  Avith  feloniously 
and  piratically  stealing  sixty -five  fathoms  of  cable,  etc.,  upon  the  high 
seas,  Avithin  the  jurisdiction  of  the  admiralty.  It  appeared  that  they 
were  Deal  pilots,  avIio,  having  been  applied  to  by  the  master  to  take 


1086  PIRACY. 

the  vessel  into  Rarasgate,  had,  in  collusion  with  him,  cut  away  the 
cable  and  part  of  the  anchor,  which  had  before  been  broken,  for  the 
pur])i)se  of  causing  an  average  loss  to  the  underwriters.  It  was  ob- 
jected that  the  oifence  of  the  prisoners  was  not  larceny,  having  been 
committed  by  them  jointly  witli  the  master  of  the  vessel,  not  for  the 
purpose  of  defrauding  the  owners,  but  for  the  purpose  of  defrauding 
the  underwriters  for  the  benefit  of  the  owners.  A  majority  of  the 
judges,  however,  held  the  conviction  right.  E,.  v.  Curling,  Russ.  & 
Ryri23. 

Proof  with  regard  to  accessories.  Accessories  to  piracy  were  tri- 
able only  by  the  civil  law,  and  if  their  offence  was  committed  on  land, 
they  were  not  punishable  at  all  before  the  11  &  12  Will.  3,  c.  7,  s.  10. 
And  now  by  the  8  Geo.  1,  c.  24,  s.  3,  all  persons  whatsoever,  who,  by 
the  11  &  12  Will.  3,  c.  7,  are  declared  to  be  accessory  or  accessories  to 
any  piracy  or  robbery  therein  mentioned,  are  declared  to  be  principal 
pirates,  felons,  and  robbers,  and  shall  be  inquired  of,  heard,  deter- 
mined, and  adjudged,  in  the  same  manner  as  persons  guilty  of  piracy 
and  robbery  may,  according  to  that  statute,  and  shall  sufier  death  in 
like  manner  as  pirates,  etc. 

The  knowingly  abetting  a  pirate  within  the  body  of  a  county,  is 
not  triable  at  common  law.  Admiralty  case,  6  Coke  Rep.  pt.  13,  p.  51. 


* 


^--l  -|        *  Venue  and  trial.     The  decisions  with  respect  to  the  venue 
J    for  oifences  committed  on  the  high  seas  have  been  stated,  anie^ 
p.  254. 

By  the  46  Geo.  3,  c.  54,  all  treasons,  piracies,  felonies,  robberies, 
murders,  cons})iracies,  and  other  offences,  of  what  nature  or  kind 
soever,  committed  upon  the  sea,  or  in  any  haven,  river,  creek,  or  place, 
where  the  admiral  or  admirals  have  power,  authority,  or  jurisdiction, 
may  be  inquired  of,  tried,  etc.,  according  to  the  common  course  of  the 
laws  of  this  realm ;  and  for  offences  committed  upon  the  land  within  this 
realm,  and  not  otherwise,  in  any  of  his  Majesty's  islands,  plantations, 
colonies,  dominions,  forts,  or  factories,  under  and  by  virtue  of  the 
king's  commission  or  commissions,  under  the  great  seal  of  Great 
Britain,  to  be  directed  to  any  such  four  or  more  discreet  persons  as  the 
lord  chancellor,  etc.,  shall  from  time  to  time  think  fit  to  appoint.  The 
commissioners  are  to  have  the  same  powers  as  commissioners  under 
the  28  Hen.  8. 

Punishment  under  the  7  Will.  4  &  1  Vict.  c.  88.  By  the  7  Will. 
4  &  1  Vict.  c.  88  (U.  K.),  so  much  of  the  28  Hen.  8,  c.  15 ;  the  11 
&  12  Will.  3,  c.  7;  the  4  Geo.  1,  c.  11,  s.  7  ;  the  8  Geo,  1,  c.  24; 
and  the  18  Geo.  2,  c.  30,  as  relates  to  the  punishment  of  the  crime  of 
piracy,  or  of  any  offence,  by  any  of  the  said  Acts,  declared  to  be 
piracy,  or  of  accessories  thereto  respectively,  are  repealed. 

By  s.  2,  "whosoever  with  intent  to  commit,  or  at  the  time  of  or 
immediately  before,  or  immediately  after  committing  the  crime  of 
piracy  in  respect  of  any  ship  or  vessel,  shall  assault,  with  intent  to 


PIRACY,  1087 

murder,  any  person  being  on  board  of  or  belonging  to  such  ship  or 
vessel,  or  shall  stab,  cut  or  wound  any  such  person,  or  unlawfully  do 
any  act  by  which  the  life  of  such  person  may  be  endangered,  shall  be 
guilty  of  felony,  and  being  convicted  thereof  shall  suffer  death  as  a 
felon." 

By  s.  3,  "  whosoever  shall  be  convicted  of  any  offence  which  by  any 
of  the  Acts  hereinbefore  referred  to  amounts  to  the  crime  of  piracy, 
and  is  thereby  made  punishable  with  death,  shall  be  liable,  at  the  dis- 
cretion of  the  court,  to  be  transported  beyond  the  seas  [now  penal 
servitude]  for  the  term  of  the  natural  life  of  such  offender,  or  for 
any  term  not  less  than  fifteen  years,  or  to  be  imprisoned  for  any  term 
not  exceeding  three  years." 

By  s.  4,  "  in  the  case  of  every  felony  punishable  under  this  Act, 
every  principal  in  the  second  degree,  and  every  accessory  before  the 
fact,  shall  be  punishable  with  death  or  otherwise  in  the  same  manner 
as  the  principal  in  the  first  degree  is  by  this  Act  punishable,  and 
every  accessory  after  the  fact,  to  any  felony  punishable  under  this  Act 
shall,  on  conviction,  be  liable  to  be  iniprisoned  for  any  term  not  ex- 
ceeding two  years." 

By  s.  5,  in  cases  of  imprisonment  the  court  may  award  hard  labor, 
and  solitary  confinement  not  exceeding  one  month  at  any  one  time, 
and  three  months  in  any  one  year. 


1088  POISON. 


*372'|  *POisoN. 

PAGE 

Administering  poison  with  intent  to  murder 872 

Attempting  to  administer  poison  with  intent  to  murder        .         .  872 

Adniiiiisti'riiig  drugs  with  intent  to  commit  an  indictable  oifence     .  872 
Adniiiiistcriiig  poison  so  as  to  endanger   life  or  inflict  grievous 

bodily  harm 872 

Administering  poison  with  intent  to  injure,  aggrieve,  or  annoy        .  872 

Persons  charged  with  felony  may  be  convicted  of  misdemeanor  873 

Poisoning  fish 873 

Administering  drugs  to  procure  abortion 873 

Proof  of  administering 873 

Proof  of  the  intent 873 

Sale  of  poisoned  grain,  seed,  or  flesh 873 

Administering  poison  with  intent  to  murder.  See  24  &  25 
Vict.  c.  100,  s.  11,  supra,  p.  809. 

Attempting  to  administer  poison  with  intent  to  murder.     See 

24  &  25  Vict.  c.  100,  s.  14,  supra,  p.  809. 

Administering  drugs  with  intent  to  commit  an  indictable 
offence.  By  the  24  &  25  Vict.  c.  100,  s.  22,  "whosoever  shall  un- 
lawfully apply  or  administer  to  or  cause  to  be  taken  by,  or  attempt  to 
apply  or  administer  to,  or  attempt  to  cause  to  be  administered  to  or 
taken  by,  any  person,  any  chloroform,  laudanum,  or  other  stupefying 
or  overpowering  drug,  matter,  or  thing,  with  intent  in  any  of  such 
cases  thereby  to  enable  himself  or  any  other  person  to  commit,  or 
with  intent  in  any  of  such  cases  thereby  to  assist  any  other  person  in 
committing  any  indictable  offence,  shall  be  guilty  of  felony,  and  being 
convicted  thereof  shall  be  liable,  at  the  discretion  of  the  court,  to  be 
kept  in  penal  servitude  for  life,  or  for  any  other  term  not  less  than 
three  [now  five]  years,  or  to  be  imprisoned  for  any  term  not  exceed- 
ing two  years,  with  or  without  hard  labor." 

Administering  poison  so  as  to  endanger  life  or  inflict  grievous 
bodily  harm.  By  s.  23,  "  whosoever  shall  unlawfully  and  maliciously 
administer  to  or  cause  to  be  administered  to  or  taken  by  any  other  person 
any  poison  or  other  destructive  or  noxious  thing,  so  as  thereby  to  en- 
danger the  life  of  such  person,  or  so  as  thereby  to  inflict  uj)on  such 
person  any  grievous  bodily  harm,  shall  be  guilty  of  felony,  and  being 
convicted  thereof  shall  be  liable,  at  the  discretion  of  the  court,  to  be 
kept  in  penal  servitude  for  any  term  not  exceeding  ten  years,  and  not 
less  than  three  [now  five]  years,  or  to  be  imprisoned  for  any  term  not 
exceeding  two  years,  with  or  without  hard  labor." 

Administering  poison  with  intent  to  injure,  aggrieve,  or  annoy.  By 


POISON,  1089 

*s.  24,  "whosoever  shall  unlawfully  and  maliciously  admin-  r^oyo 
ister  to  or  cause  to  be  administered  to  or  taken  by  any  otlier  •- 
person  any  poison  or  other  destructive  or  noxious  thing,  with  intent  to 
injure,  aggrieve,  or  annoy  such  person,  shall  be  guilty  of  a  misde- 
meanor, and  being  convicted  thereof  shall  be  liable,  at  the  discretion 
of  the  court,  to  be  kept  in  penal  servitude  for  the  term  of  three  [now 
five]  years,  or  to  be  imprisoned  for  any  term  not  exceeding  two  years, 
with  or  without  hard  labor." 

Persons  charged  with  felony  of  administering  poison  may  be 
convicted  of  middemeanor.  By  s.  25,  "  if,  upon  the  trial  of  any 
person  for  any  felony  in  the  last  but  one  preceding  section  mentioned, 
the  jury  sliall  not  be  satisfied  that  such  person  is  guilty  thereof,  but 
shall  be  satisfied  that  he  is  guilty  of  any  misdemeanor  in  the  last  pre- 
ceding section  mentioned,  then  and  in  every  such  case  the  jury  may 
acquit  the  accused  of  such  felony,  and  find  him  guilty  of  such  mis- 
demeanor, and  thereupon  he  shall  be  liable  to  be  punished  in  the 
same  manner  as  if  convicted  upon  an  indictment  for  such  misde- 
meanor. 

Poisoning  fish.  By  the  24  &  25  Vict.  c.  97,  s.  32,  "unlawfully 
and  maliciously  putting  any  lime  or  other  noxious  material  in  any 
pond  or  water  which  shall  be  private  property,  or  in  which  there  shall 
be  any  private  right  of  fishery,  with  intent  tliereby  to  destroy  any  of 
the  fish  that  may  then  be  or  that  may  thereafter  be  put  therein,  is 
made  a  misdemeanor  to  be  punished  by  penal  servitude  for  any  term 
not  exceeding  seven  years  and  not  less  than  three  [now  five]  years,  or 
by  imprisonment  for  any  term  not  exceeding  two  years,  with  or  with- 
out hard  labor,  and  with  or  without  solitary  confinement,  and  if  the 
prisoner  be  a  male  under  the  age  of  sixteen  years,  with  or  without 
whipping." 

Administering  drugs  to  procure  abortion.     See  the  24  &  25  Vict. 

100,  ss.  58,  59,  sujym,  p.  274. 

Proof  of  administering.     See  tit.  "Abortion,"  supra,  p.  274. 

Proof  of  the  intent.  Administering  cantharides  to  a  woman  with 
intent  to  excite  her  sexual  passion,  in  order  that  the  prisoner  may 
have  connection  with  her,  was  held  to  be  an  administering  with  intent 
to  injure,  aggrieve,  or  annoy  within  the  meaning  of  the  repealed 
statute  of  23  &  24  Vict.  c.  8,  s.  2.  R.  v.  Wilkins,  L.  &  C.  89  ;  31 
L.  J.,  M.  C.  72.  But  where  cantharides  was  administered  in  so  small 
a  quantity  as  to  be  insufficient  to  occasion  injury  or  to  produce  any 
effect  on  the  human  system,  it  was  held  by  Cockburn,  C.  J.,  after  con- 
sulting Hawkins,  J.,  that  no  offence  within  24  &  25  Vict.  c.  100,  s. 
24,  had  been  committed  although  administered  with  intent  to  annoy, 
because  it  could  not,  in  the  form  administered,  be  said  to  be  noxious. 
R.  V.  Hennah,  13  Cox,  C.  C.  547.  The  question  is  whether  the  drug 
69 


1090 


POISON. 


in  the  form  and  quantity  in  which  it  is  administered  is  a  Doxious 
drug  or  not.  K.  v.  Cramp,  5  Q.  B.  D.  307 ;  49  L.  J.,  M.  C.  44, 
antej  p.  276. 

Sale  of  poisoned  grain,  seed,  or  flesh.  The  26  &  27  Vict.  c.  113, 
amended  and  extended  by  27  &  28  Vict.  c.  115,  forbids  the  sale  of 
poisoned  grain,  seed,  or  flesh,  under  penalties  which  may  be  enforced 
on  summary  conviction. 


POST-OFFICE— OFFENCES   RELATING  TO  THE.  1091 


♦POST-OFFICE— OFFENCES  RELATING  TO  THE. 


[*874 


PAOB 

Statutes 874 

Offences  by  officers  employed  in  the  post-office 874 

Opening  or  detaining  letters ,  874 

Stealing,  embezzling,  secreting,  or  destroying  letters  .  875 

Stealing,  etc.,  printed  papers    ....,,  875 

Offences  by  other  parties         ••..,.,..  875 

Stealing  out  of  letters 875 

Stealing  letter-bags  or  letters  from  mail  or  post-ofiice        .  875 

Stealing  from  a  post-office  packet 876 

Fraudulently  retaining  letters,  etc.      .....  876 

Accessories  and  procurers    .........  876 

Receivers  .•••.....,..  876 

Venue   .        .        • 877 

Form  of  indictment         .        ,        .        .        .        .        .        .        . '      ,  877 

Punishment .  878 

Interpretation  clause '    .        .  878 

Money  orders        ...........  881 

What  is  a  post  letter 881 

Proof  of  beiu]^  employed  by  or  under  the  post-office        .        .        .  882 

stealing,  embezzling,  recreting,  or  destroying         .        .        ,  883 

What  is  a  post-office 885 

In  whose  possession  letters  are  on  their  way  through  the  post     .        .  885 

Authority  of  servants  to  part  with  the  property        ....  885 

Statutes.  The  law  with  re^rd  to  the  embezzlement  of  letters  by 
persons  employed  in  the  post-office  was  formerly  contained  in  the  5 
Geo.  3,  c.  25,  s.  17  ;  7  Geo.  3,  c.  50,  s.  1  ;  and  42  Geo.  3,  c.  81,  s.  1. 
The  provisions  of  those  Acts  were  afterwards  consolidated  in  the  52 
Geo.  3,  c.  143. 

By  the  7  Will.  4  &  1  Vict.  c.  32  (U.  K.),  the  last-mentioned 
statute  and  all  other  enactments  relative  to  oiFences  committed  against 
the  post-office  (excepting  so  much  of  the  5  Geo.  3,  c.  25,  and  the  7 
Geo.  3,  c.  50,  as  respectively  relate  to  any  felony  or  other  oifence 
committed  within  the  British  dominions  in  America  and  the  West 
Indies)  were  repealed,  and  the  law  was  consolidated  and  further 
provisions  made,  by  the  7  Will.  4  &  1  Vict.  c.  36  (U.  K,), 
which  came  into  operation  on  the  same  day  as  the  7  Will.  4  &  1 
Vict.  c.  32. 

By  the  32  &  33  Vict.  c.  73,  s.  23,  telegraphic  messages  are 
post  letters  within  the  meaning  of  the  1  Vict.  c.  36.  See  "  Tele- 
graphs." 

Offences  by  officers  employed  in  the  post-office — opening  or  de- 
taining letters.  By  the  7  Will.  4  &  1  Vict.  c.  36  (U.  K.),  s.  25, 
"every  person  employed  by  or  under  the  post-office  who  shall  contrary 
to  his  duty  open  or  procure  or  suffer  to  be  opened  a  post  letter,  or 
*shall  wilfully  detain  or  delay,  or  procure  or  suffer  to  be  de-  r*o'7c 
tained  or  delayed,  a  post  letter,  shall  in  England  and  Ireland   ^ 


1092  POST-OFFICE — OFFEXCES   DELATING   TO   THE. 

be  guilty  of  a  mlsdeinoanor,  uikI  in  Scotland  of  a  crime  and  offence, 
and  being  convicted  thereof  shall  suffer  such  punishment  by  fine  or 
imjn-isonment,  or  by  both,  as  to  the  court  shall  seem  meet ;  provided 
always,  that  .nothing  herein  contained  shall  extend  to  the  opening  or 
detaining  or  delaying  of  a  post  letter  returned  for  want  of  a  true 
direction,  or  of  a  post  letter  returned  by  reason  that  the  person  to 
whom  the  same  shall  be  directed  is  dead  or  cannot  be  found,  or 
shall  have  refused  the  same,  or  shall  have  refused  or  neglected  to 
pay  the  jjostage  thereof;  nor  to  the  opening  or  detaining  or  delaying  of 
a  post  letter  in  obedience  to  an  express  warrant  in  writing  under 
the  hand  (in  Great  Britain)  of  one  of  the  principal  secretaries  of 
state,  and  in  Ireland  under  the  hand  and  seal  of  the  lord  lieutenant  of 
Ireland." 

Offences  by  officers  employed  in  the  post-office — stealing,  em- 
bezzling, secreting,  or  destroying  letters.  By  s.  26,  "  every  person 
employed  under  the  post-office  who  shall  steal,  or  shall,  for  any  pur- 
pose whatever,  embezzle,  secrete,  or  destroy  a  post  letter,  shall  in  Eng- 
land and  Ireland  be  guilty  of  felony,  and  in  Scotland  of  a  high  crime 
and  offence,  and  shall,  at  the  discretion  of  the  court,  either  be  trans- 
ported beyond  the  seas  [penal  servitude]  for  the  term  of  seven  years, 
or  be  imprisoned  for  any  term  not  exceeding  three  years  ;  and  if  any 
such  post  letter  so  stolen  or  embezzled,  secreted  or  destroyed,  shall 
contain  therein  any  chattel  or  money  whatsoever,  or  any  valuable  secu- 
rity, every  such  offender  shall  be  transported  beyond  the  seas  for 
life." 

Offences  by  officers  employed  in  the  post-office — stealing  or 
embezzling  printed  papers.  By  s.  32,  "  for  the  protection  of  printed 
votes  and  proceedings  in  parliament  and  printed  newspapers,"  it  is 
enacted,  that  "  every  person  employed  in  the  post-office  who  shall 
steal,  or  shall  for  any  purpose  embezzle,  secrete  or  destroy,  or  shall 
wilfully  detain  or  delay  in  course  of  conveyance  or  delivery  thereof 
by  post,  any  printed  votes  or  proceedings  in  parliament,  or  any  printed 
newspaper,  or  any  other  printed  paper  whatever  sent  by  the  post  with- 
out covers,  or  in  covers  open  at  the  sides,  shall  in  England  and  Ire- 
land be  guilty  of  a  misdemeanor,  and  in  Scotland  of  a  crime  and 
offence,  and  being  convicted  thereof  shall  suffer  such  punishment  by 
fine  or  imprisonment,  or  by  both,  as  to  the  court  shall  seem  meet." 

Offences  by  other  parties — stealing  out  of  letters.  By  s.  27, 
"  every  person  who  shall  steal  from  or  out  of  a  post  letter  any  chattel, 
or  money  or  valuable  security  shall,  in  England  and  Ireland  be  guilty 
of  felony,  and  in  Scotland  of  a  high  crime  and  offence,  and  shall  be 
transported  beyond  the  seas  for  life." 

Offences  by  other  parties — stealing  letter-bags  or  letters  from 
mail  or  post-office.  By  s.  28,  "every  person  who  shall  steal  a  post 
letter-bag,  or  a  post  letter  from  a  post  letter-bag,  or  shall  steal  a  post  letter 


POST-OFFICE — OFFENCES   RELATING   TO   THE.  1093 

from  a  post-office,  or  from  an  officer  of  the  post-office,  or  from  a  mail, 
or  shall  stop  a  mail  with  intent  to  rob  or  search  the  same,  shall  in 
England  and  Ireland  be  gnilty  of  felony,  and  in  Scotland  of  a  high 
crime  and  offence,  and  shall  be  transported  beyond  the  seas  lor 
life." 

*Oflences  by  other  parties — stealing  from  a  post-ofiB.ce  r^oyp 
packet.  By  s.  29,  "  every  person  who  shall  steal  or  nnlaw-  L 
fully  take  away  a  post  letter-bag  sent  by  a  post-office  packet,  or  who 
shall  steal  or  unlawfully  take  a  letter  out  of  any  such  bag,  or  shall 
unlawfully  open  any  such  bag,  shall  in  England  and  Ireland  be  guilty 
of  felony,  and  in  Scotland  of  a  high  crime  and  offence,  and  shall  be 
transported  beyond  the  seas  for  any  term  not  exceeding  fourteen 
years." 

Offences  by  other  parties — fraudulently  retaining  letters,  etc. 
By  s.  31,  reciting  that  "  post  letters  are  sometimes  by  mistake  deliv- 
ered to  the  wrong  person,  and  post  letters  and  post  letter  bags  are  lost 
in  the  course  of  conveyance  or  delivery  thereof,  and  are  detained  by 
the  finders  in  expectation  of  gain  or  reward ;"  it  is  enacted,  "  that 
every  person  who  shall  fraudulently  retain,  or  shall  wilfully  secrete, 
or  keep,  or  detain,  or  being  rajuired  to  deliver  up  by  an  officer  of  the 
post-office,  shall  neglect  or  refuse  to  deliver  up  a  post  letter  which 
ought  to  have  been  delivered  to  any  other  person,  or  a  post  letter-bag 
or  post  letter  which  shall  have  been  sent,  whether  the  same  shall  have 
been  found  by  the  person  secreting,  keeping,  or  detaining,  or  neglect- 
ing or  refusing  to  deliver  up  the  same,  or  by  any  other  person,  shall 
in  England  and  Ireland  be  guilty  of  a  misdemeanor,  and  in  Scotland 
of  a  crime  and  offence,  and  beini>:  convicted  thereof  shall  be  liable  to 
be  punished  by  fine  and  imprisonment." 

Accessories  and  procurers.  By  s.  35,  it  is  enacted,  '*  that  in  the 
case  of  every  felony  punishable  under  the  post-office  Acts  every 
principal  in  the  second  degree,  and  every  accessory  before  the  fact, 
shall  be  punishable  in  the  same  manner  as  the  principal  in  the  first 
degree  is  by  the  post-office  Acts  punishable  ;  and  every  accessory  after 
the  fact  to  any  felony  punishable  under  the  post-ofiice  Acts  (except 
only  a  receiver  of  any  property  or  thing  stolen,  taken,  embezzled,  or 
secreted),  shall,  on  conviction,  be  liable  to  be  imprisoned  for  any  term 
not  exceeding  two  years  ;  and  every  person  who  shall  aid,  abet,  coun- 
sel, or  procure  the  commission  of  any  misdemeanor  punishable  under 
the  post-office  Acts,  shall  be  liable  to  be  indicted  and  punished,  as  a 
principal  offender."     See  also  s.  37,  infra. 

And  by  s.  36,  "  every  person  who  shall  solicit  and  endeavor  to  pro- 
cure any  other  person  to  commit  a  felony  or  misdemeanor  punishable 
by  the  post-office  Acts,  shall  in  England  and  Ireland  be  guilty  of  a 
misdemeanor,  and  in  Scotland  of  a  crime  and  offence,  and  being  thereof 
convicted  shall  be  liable,  at  the  discretion  of  the  court,  to  be  impris- 
oned for  any  term  not  exceeding  two  years." 


1094  POST-OFFICE OFFENCES   HELATING   TO  THE. 

Receivers.  By  s.  30,  "  with  regard  to  receivers  of  property  sent 
by  the  post  and  stolen  therefrom,"  it  is  enacted,  "  that  every  person 
wlio  shall  receive  any  post  letter,  or  post  letter-bag,  or  any  chattel  or 
money  or  valnable  secnrity,  the  stealing  or  taking  or  embezzling  or 
secreting  whereof  shall  amoinit  to  a  felony  under  the  post-office  Acts, 
knowing  the  same  to  have  been  feloniously  stolen,  taken,  embezzled, 
or  secreted,  and  to  have  been  sent  or  to  have  been  intended  to  be 
sent  by  tlie  f)ost,  shall  in  England  and  Ireland  be  guilty  of  felony, 
and  in  Scotland  of  a  high  crime  and  offence,  and  may  be  indicted  and 
convicted  either  as  an  accessory  after  the  fact  or  for  a  substantive 
felony,  and  in  the  latter  case,  whether  the  principal  felon  shall  or  shall 
not  have  been  previously  convicted,  or  shall  or  shall  not  be  amenable 
^„^^-],  *to.  justice ;  and  every  receiver,  howsoever  convicted,  shall  be 
-'   liable  to  be  transported  beyond  the  seas  for  life." 

"Vemie.  By  s.  37,  "  the  offence  of  every  offender  against  the  post- 
office  Acts  may  be  dealt  with,  and  indicted  and  tried  and  punished, 
and  laid  and  charged  to  have  been  committed  in  England  and  Ire- 
land, either  in  the  county  or  place  where  the  offence  shall  be  commit- 
ted, or  in  any  county  or  place  in  which  he  shall  be  apprehended,  or 
be  in  custody,  as  if  his  offence  had  been  actually  committed  in  that 
county  or  place,  and  if  committed  in  Scotland,  either  in  the  high  court  of 
justiciary  at  Edinburgh,  or  in  the  circuit  court  of  justiciary  to  be  holden 
by  the  lords  commissioners  of  justiciary  within  the  district  where  such 
offence  shall  be  committed,  or  in  any  county  or  place  within  which 
such  offender  shall  be  apprehended  or  be  in  custody,  as  if  his  offence 
had  been  actually  committed  there ;  and  where  an  oflFence  shall  be 
committed  in  or  upon  or  in  respect  of  a  mail,  or  upon  a  person  en- 
gaged in  the  conveyance  or  delivery  of  a  post  letter-bag  or  post  letter, 
or  in  respect  of  a  post  letter-bag,  or  post  letter,  or  a  chattel,  or  money, 
or  valuable  security  sent  by  the  post,  such  offence  may  be  dealt  with 
and  inquired  of,  and  tried  and  punished,  and  laid  and  charged  to  have 
been  committed,  as  well  in  any  county  or  place  in  which  the  offender 
shall  be  apprehended  or  be  in  custody,  as  also  in  any  county  or  jilace 
through  any  part  whereof  the  mail,  or  the  person,  or  the  post  letter- 
bag,  or  the  post  letter,  or  the  chattel,  or  the  money,  or  the  valuable 
security  sent  by  the  post  in  respect  of  which  the  offence  shall  have 
been  committed,  shall  have  passed  in  due  course  of  conveyance  or  de- 
livery by  post,  in  the  same  manner  as  if  it  had  been  actually  commit- 
ted in  such  county  or  place ;  and  in  all  cases  where  the  side  or  the 
centre  or  other  part  of  a  highway,  or  the  side,  the  bank,  the  centre, 
or  other  part  of  a  river,  or  canal,  or  navigation,  shall  constitute  the 
boundary  of  the  two  counties,  such  offence  may  be  dealt  with  and 
inquired  of,  and  tried  and  punished,  and  laid  and  charged  to  have 
been  committed  in  either  of  the  said  counties  through  which  or  ad- 
joining to  which  or  by  the  boundary  of  any  part  of  which  the  mail 
or  person  shall  have  ])assed  in  due  course  of  conveyance  or  delivery 
by  the  post,  in  the  same  manner  as  if  it  had  actually  been  committed 
in  such  county  or  place ;   and  every  accessory  before  or  after  the  fact 


POST-OFFICE — OFFENCES   RELATING  TO  THE.  1095 

to  any  such  offence,  if  the  same  be  a  felony  or  a  high  crime,  and 
every  person  aiding  or  abetting  or  counselling  or  procuring  Ihe 
commission  of  any  such  offence,  if  the  same  be  a  misdemeanor,  may 
be  dealt  with,  indicted,  tried,  and  punished  as  if  he  were  a  princi- 
pal, and  his  offence  laid  and  charged  to  have  been  committed  in  any 
county  or  place  in  which  the  principal  offender  may  be  tried." 

By  s.  39,  "where  an  offence  punishable  under  the  post-office  Acts 
shall  be  committed  within  the  Jurisdiction  of  the  admiralty,  the  same 
shall  be  dealt  with  and  inquired  of  and  tried  and  determined  in  the 
same  manner  as  any  other  offence  committed  within  that  jurisdiction." 

Form  of  indictment.  By  s.  40,  "  in  every  case  where  an  offence 
shall  be  committed  in  respect  to  a  post  letter-bag  or  a  post  letter,  or 
a  chattel,  money,  or  a  valuable  security  sent  by  the  post,  it  shall  be 
lawful  to  lay  in  the  indictment  or  criminal  letters  to  be  preferred 
against  the  offender,  the  property  of  the  post  letter-bag,  or  of  the 
*post  letter,  or  chattel,  or  money,  or  the  valuable  security  sent  r^o^o 
by  the  post,  in  the  postmaster-general ;  and  it  shall  not  be  L 
necessary  in  the  indictment  or  criminal  letters  to  allege  or  to  prove  upon 
the  trial  or  otherwise  that  the  post  letter-bag  or  any  such  post  letter  or 
valuable  security  was  of  any  value ;  and  in  any  indictment  or  any  crimi- 
nal letters  to  be  preferred  against  any  person  employed  under  the  post- 
office  for  any  offence  committed  against  the  post-office  Acts,  it  shall 
be  lawful  to  state  and  allege  that  such  offender  was  employed  under 
the  post-office  of  the  United  Kingdom  at  the  time  of  the  committing 
of  such  offence,  without  stating  further  the  nature  or  particulars  of 
his  employment." 

•Punishment.  By  s.  41,  "every  person  convicted  of  any  offence 
for  which  the  punishment  of  transportation  for  life  is  herein  awarded 
shall  be  liable  to  be  transported  beyond  the  seas  for  life  or  for  any 
term  not  less  than  seven  years,  or  to  be  imprisoned  for  any  term 
not  exceeding  four  years ;  and  every  person  convicted  of  any  offence 
punishable  according  to  the  post-office  Acts  by  transportation  for 
fourteen  years,  shall  be  liable  to  be  transported  for  any  term  not 
exceeding  fourteen  years  nor  less  than  seven  years,  or  to  be  impris- 
oned for  any  term  not  exceeding  three  years."  Penal  servitude  is 
now  substituted  for  transportation. 

By  s.  42,  "  where  a  person  shall  be  convicted  of  an  offence  punish- 
able under  the  post-office  Acts,  for  which  imprisonment  may  be 
awarded,  the  court  may  sentence  the  offender  to  be  imprisoned,  with 
or  without  hard  labor,  in  the  common  gaol  or  house  of  correction, 
and  may  also  direct  that  he  shall  be  kept  in  solitary  confinement 
for  the  whole  or  any  portion  of  such  imprisonment,  as  to  the  court 
shall  seem  meet."  But  as  to  solitary  confinement,  see  1  Vict.  c.  90, 
s.  5. 

Interpretation  clause.  By  s.  47,  "  for  the  interpretation  of  the 
post-office  laws,"  it  is  enacted,  "  that  the  following  terms  and  expres- 


1096  POST-OFFICE — OFFENCES   RELATING  TO  THE. 

sions  shall  have  the  several  interpretations  hereinafter  respectively  set 
forth,  unless  such  interpretations  are  repugnant  to  tlie  subject,  or  in- 
consistent with  the  context  of  the  provisions  in  which  they  may  be 
found;"  (that  is  to  say,)  the  term  "British  letter"  shall  mean  a  letter 
transmitted   -within    the  United   Kingdom;    and    the  term    "British 
newspapers "  shall  mean   newspapers  printed   and   pxdjlished  in  the 
United  Kingdom  liable  to  the  stamp  duty  and  duly  stam]X'd  ;  and  the 
term  "  British   postage"  shall  mean  the  duty  chargeable  on  letters 
transmitted  by  ])ost  from  })lace  to  place  within  the  United  Kingdom, 
or  if  transmitted  to  or  from  the  United  Kingdom,  chargeable  for  the 
distance  which  they  shall  be  transmitted  within  the  United  Kingdom, 
and  including  also  the  packet  postage,  if  any  ;  and  the  term  "  colonial 
letter"  shall  mean  a  letter  transmitted  between  any  of  her  Majesty's 
colonies  and  the  United  Kingdom ;  and  tlie  term  "  colonial  newspa- 
pers" shall  mean   news})apers  printed  and  published  in  any  of  her 
Majesty's  dominions  out  of  the  United  Kingdom  ;  and  the  term  "con- 
vention posts"  shall  mean  posts  established  by  the  postmaster-general 
under  agreements  with  the  inhabitants  of  any  places;  and  the  term 
"  double  letter "  shall  mean  a  letter  having  one  inclosure  ;  and  the 
term  "double  post"  shall  mean  twice  the  amount  of  single  postage; 
and  the  term  "  East  Indies  "  shall  mean  every  port  and  place  within 
the  territorial  acquisitions  now  vested  in  the  East  India  Company  in 
trust  for  her  Majesty,  and  every  other  port  or  place  within  the  limits 
of  the  charter  of  the  said  company  (China  excepted),  and  shall  also 
*S7Q1    *^^^clude  the  Cape  of  Good  Hope  ;  and  the  term  "  express  "  shall 
-■   mean  every  kind  of  conveyance  employed  to  cai'ry  letters  on  be- 
half of  the  post-office  other  than  the  usual  mail ;  and  the  term  "  foreign 
country"  shall  mean  any  country,  state,  or  kingdom  not  included  in 
the  dominions  of  her  Majesty  ;  and   the  term   "  foreign   letter  "  shall 
mean  a  letter  transmitted  to  or  from  a  foreign  country  ;  and  the  term 
"  foreign  newspapers  "  shall  mean  newspapers  printed  and  published  in 
a  foreign  country  in  the  language  of  that  country  ;  and  the  term  "  for- 
eign postage  "  shall  mean  the  duty  charged  for  the  conveyance  of  let- 
ters within  such  foreign  country ;  and  the  term  "  franking  officer  "  shall 
mean  the  person  appointed   to   frank   the  official   correspondence  of 
offices  to  which  the  privilege  of  franking  is  granted ;  and   the  term 
"  her  Majesty  "  shall  mean  her  Majesty,  her  heirs,  and  successors  ; 
and  the  term  "  her  Majesty's  colonies  "  shall  include  every  port  and 
place  within  the  territorial  acquisitions  now  vested  in  the  East  India 
Company  in   trust  for  her  Majesty,   the  Cape  of   Good   Hope,  the 
Islands  of  St.  Helena,  Guernsey,  Jersey,  and  the  Isle  of  Man  (unless 
any  such  places  be  expressly  excepted),  as  well  as  her  Majesty's  other 
colonies  and  possessions  beyond  seas ;  and  the  term  "  inland  postage  " 
shall    mean    the   duty  charged  for  the  transmission  of  post    letters 
within  the  limits  of  the  United  Kingdom,  or  within  the  limits  of  any 
colony;  and  the  term   "  letter"  shall  include  packet,   and   the  term 
"packet"  shall  include  letter;  and  the  expression  "  lord  lieutenant  of 
Ireland  "  shall  mean  the  chief  governor  or  governors  of  Ireland  for 
the  time  being ;  and  the  expression  "  lords  of  the  treasury  "  shall 


POST-OFFICE— OFFENCES   RELATING  TO   THE^  1097 

mean  the  lord  high  treasurer  of  tlie  United  Kingdom  of  Great 
Britain  and  Ireland,  or  the  lords  commissioners  of  her  Majesty's 
treasury  of  the  United  Kingdom  of  Great  Britain  and  Ireland,  or  any 
three  or  more  of  them  ;  and  the  term  "  mail  "  shall  include  every  con- 
veyauce  by  which  post  letters  are  carried,  whether  it  be  a  coach,  or 
cart,  or  horse,  or  any  other  conveyance,  and  also  a  person  employed 
iu  conveying  or  delivering  post  letters,  and  also  every  vessel  which 
is  included  in  the  term  packet  boat;  and  the  term  "mail  bag"  shall 
mean  a  mail  of  letters,  or  a  box,  or  a  parcel,  or  any  other  envelope 
iu  which  post  letters  are  conveyed,  whetlier  it  does  or  does  not  con- 
tain post  letters  ;  and  the  term  "  master  of  a  vessel  "  shall  include  any 
person  in  charge  of  a  vessel,  whether  commander,  mate,  or  other 
person,  aud  whether  the  vessel  be  a  ship  of  war  or  other  vessel ;  and 
the  expression  "officer  of  the  post-office"  shall  include  the  post- 
master-general, and  every  deputy  postmaster,  agent,  officer,  clerk, 
letter-carrier,  guard,  post-boy,  rider,  or  any  other  person  employed  iu 
any  business  of  the  post-office,  whether  employed  by  the  postmaster- 
general,  or  by  auy  person  under  him,  or  on  behalf  of  the  post-office ; 
and  the  term  "  packet  postage  "  shall  mean  the  postage  chargeable 
for  the  transmission  of  letters  by  packet  boats  between  Great 
Britain  and  Ireland,  or  between  the  United  Kingdom  and  any  of 
her  Majesty's  colonies,  or  between  the  United  Kingdom  and  foreign 
countries ;  and  the  term  "  packet  letter  "  shall  mean  a  letter  trans- 
mitted by  a  packet  boat ;  and  the  term  "  penalty  "  shall  include  every 
pecuniary  penalty  or  forfeiture ;  and  the  expression  "  persons  em- 
ployed by  or  under  the  post-office"  shall  include  every  person  em- 
ployed in  any  business  of  the  post-office  according  to  the  interpre- 
tation given  to  the  officer  of  the  post-office  ;  and  the  terms  "  packet 
boats  "  and  "  post-office  packets  "  shall  include  vessels  employed  by 
or  under  the  post-office  or  the  admiralty  for  the  transmission  of  post 
*letters,  and  also  ships  or  vessels  (though  not  regularly  employed  r^  ^  orv 
as  packet  boats)  for  the  conveyance  of  post  letters  under  con-  L 
traot,  and  also  a  ship  of  war  or  other  vessel  in  the  service  of  her  Ma- 
jesty, in  respect  of  letters  conveyed  by  it ;  and  the  term  "  postage  " 
shall  mean  the  duty  chargeable  for  the  transmission  of  post  letters ; 
and  the  term  "  post  town  "  shall  mean  a  town  where  a  post-office  is 
established  (not  being  a  penny,  or  two-penny  or  convention  post-office)  ; 
and  the  term  "  post  letter-bag  "  shall  include  a  mail  bag  or  box,  or 
packet  or  parcel,  or  other  envelope  or  covering  in  which  post  letters 
are  conveyed,  whether  it  does  or  does  not  contain  post  letters  ;  and  the 
term  "  post-letter "  shall  mean  any  letter  or  packet  transmitted 
by  the  post  under  the  authority  of  the  postmaster-general,  and  a 
letter  shall  be  deemed  a  post  letter,  from  the  time  of  its  being  de- 
livered to  a  post-office  to  the  tinae  of  its  being  delivered  to  the  person 
to  whom  it  is  addressed ;  and  the  delivery  to  a  letter-carrier  or  other 
person  authorized  to  receive  letters  for  the  post  shall  be  a  delivery  to 
the  post-office  ;  and  a  delivery  at  the  house  or  office  of  the  person  to 
whom  the  letter  is  addressed,  or  to  him,  or  to  his  servant  or  agent,  or 
other  person  considered  to  be  authorized  to  receive  the  letter  accord- 


1098  POST-OFFICE — OFFENCES   RELATING  TO  THE. 

ing  to  the  usual  raauner  of  deliveriug  that  person's  letter,  shall  be  a 
delivery  to  the  person  addressed  ;  and  the  term  "  post-office  "  shall 
mean  any  house,  building,  room,  or  place,  where  post  letters  are  re- 
ceived or  delivered,  or  in  which  they  are  sorted,  made  up,  or  des- 
patelied  ;  and  the  term  "  postmaster-general  "  shall  mean  any  person 
or  body  of  persons  executing  the  office  of  postmaster-general  for  the 
time  being,  having  been  duly  appointed  to  the  office  by  her  Majesty  ; 
and  the  terms  "  post-office  Acts  "  and  "  post-office  laws  "  shall  mean 
all  Acts  relating  to  the  management  of  the  post,  or  to  the  establish- 
ment of  the  post-office,  or  to  postage  duties  from  time  to  time  in 
force ;  and  the  term  *'  ships  "  shall  include  vessels  other  than  packet 
boats  ;  and  the  term  "  single  postage "  shall  mean  the  postage 
chargeable  for  a  single  letter  ;  and  the  term  "  single  letter "  shall 
mean  a  letter  consisting  of  one  sheet  or  piece  of  paper,  and  under  the 
weight  of  an  ounce ;  and  the  term  "  sea  postage  "  shall  mean  the  duty 
chargeable  for  the  conveyance  of  letters  by  sea  by  vessels  not  packet 
boats ;  and  the  term  "  ship  letter "  shall  mean  a  letter  transmitted 
inwards  or  outwards  over  seas  by  a  vessel  not  being  a  packet  boat ; 
and  the  term  "  treble  letter  "  shall  mean  a  letter  consisting  of  more 
than  two  sheets  or  pieces  of  paper,  whatever  the  number,  under  the 
weight  of  an  ounce  ;  and  the  term  "  treble  postage  "  shall  mean  three 
times  the  amount  of  single  postage  ;  and  the  term  "  treble  duty  of 
postage  "  shall  mean  three  times  the  amount  of  the  postage  to  which 
the  letter  to  be  charged  would  otherwise  have  been  liable  according 
to  the  rates  of  postage  chargeable  on  letters ;  and  the  term  "  United 
Kingdom  "  shall  mean  the  United  Kingdom  of  Great  Britain  and 
Ireland  ;  and  the  term  "  valuable  security  "  shall  include  the  whole 
or  any  part  of  any  tally,  order,  or  other  security  whatsoever,  entitling 
or  evidencing  the  title  of  any  person  or  body  corporate  to  any  share 
or  interest  in  any  public  stock  or  fund,  whether  of  this  kingdom  or 
of  Great  Britain  or  of  Ireland,  or  of  any  foreign  state,  or  in  any  fund 
of  any  body  corporate,  company,  or  society,  or  to  any  deposit  in  any 
savings-bank,  or  the  whole  or  any  part  of  any  debenture,  deed,  bond, 
bill,  note,  warrant,  or  order,  or  other  security  whatsoever  for  money, 
or  for  payment  of  money,  whether  of  this  kingdom  or  of  any  foreign 
state,  or  of  any  warrant  or  order  for  the  delivery  or  transfer  of  any 
*8811  *Soods  or  valuable  thing;  and  the  term  "  vessel  "  shall  include 
-■  any  ship  or  other  vessel  not  a  post-office  packet ;  and  when- 
ever the  term  "  between "  is  used  in  reference  to  the  transmission  of 
letters,  newspapers,  parliamentary  proceedings,  or  other  things  between 
one  place  and  another,  it  shall  apply  equally  to  the  transmission  from 
either  place  to  the  other ;  and  every  officer  mentioned  shall  mean  the 
person  for  the  time  being  executing  the  functions  of  that  officer  ;  and 
whenever  in  this  Act  or  the  schedules  thereto,  with  reference  to  any 
person,  or  matter,  or  thing,  or  to  any  persons,  matters,  or  things,  the 
singular  or  plural  number  or  the  masculine  gender  only  is  expressed, 
such  expression  shall  be  understood  to  include  several  persons,  or  mat- 
ters, or  things,  as  well  as  one  person,  or  matter,  or  thing,  and  one  per- 
son, matter,  or  thing,  as  well  as  several  persons,  or  matters,  or  things, 


POST-OFFICE — OFFENCES   RELATING   TO   THE.  1099 

females  as  well  as  males,  bodies  politic  or  corporate  as  well  as  individ- 
uals, unless  it  be  otherwise  specially  provided,  or  the  subject  or  con- 
text be  repugnant  to  such  construction. 

By  s.  48,  "  this  Act  shall  extend  to  and  be  in  force  in  the  Islands  of 
Man,  Jersey,  Guernse}',  Sark,  and  Alderney,  and  in  all  her  Majesty's 
colonies  and  dominions  where  any  post  or  post  communication  is  es- 
tablished by  or  under  the  postmaster-general  of  the  United  Kingdom 
of  Great  Britain  and  Ireland." 

Post-office  money  orders.  By  11  &  12  Vict.  c.  88,  s.  4,  every 
officer  of  the  post-office  who  shall  grant  or  issue  any  money-order  with 
a  fraudulent  intent  shall  be  guilty  of  felony,  and  shall  be  liable  to 
seven  years'  transportation  (now  penal  servitude),  or  imprisonment  for 
any  term  not  exceeding  three  years.  By  s.  5  the  property  may  be  laid 
in  the  postmaster-general.  The  above  section  (4)  is  extended  to  "  postal 
orders"  by  43  &  44  Vict.  c.  33. 

What  is  a  post  letter.  Under  the  7  Will.  4  &  1  Vict.  c.  36,  s.  26, 
it  has  been  held,  that  where  an  inspector  secretly  put  a  letter,  prepared 
for  the  purpose,  containing  a  sovereign,  amongst  some  letters,  which  a 
letter-carrier  suspected  of  dishonesty  was  about  to  sort,  and  the  letter- 
carrier  stole  the  letter  and  sovereign,  that  he  was  not  rightly  convicted 
of  stealing  a  post  letter,  such  letter  not  having  been  put  in  the  post  in 
the  ordinary  way,  but  was  rightly  convicted  of  larceny  of  the 
sovereign,  laid  as  the  property  of  the  postmaster-general.  R.  v. 
Rathbone,  2  Moo.  C.  C  242.  To  make  a  man  liable  under  this  sec- 
tion, the  letter  must  have  come  into  his  hands  in  the  ordinary  course 
of  the  post-office.  R.  v.  Shepherd,  25  L.  J.,  M.  C.  52.  See  also  R. 
V.  Gardner,  1  C.  &  K.  628,  47  E.  C.  L.  The  president  of  a  depart- 
ment in  the  post-office  put  a  half-sovereign  into  a  letter,  on  which  he 
wrote  a  fictitious  address,  and  dropped  the  letter,  with  the  money  in 
it  into  the  letter-box  of  a  post-office  receiving  house  where  the  prisoner 
was  employed  in  the  service  of  the  post-office.  It  was  held  that  this 
was  a  stealing  of  a  post  letter  containing  money  within  the  statute,  and 
that  this  Avas  not  the  less  a  "  post  letter  "  within  that  enactment,  be- 
cause it  had  a  fictitious  address.  R.  v.  Young,  1  Den.  C.  C.  R.  194. 
Where  a  person  took  a  money  letter  to  the  post-office,  Avhich  was  at  an 
inn,  and  did  not  put  it  into  the  letter-box,  but  laid  the  letter  and  the 
money  to  prepay  it  upon  a  table  in  the  passage  of  the  inn,  in  which 
passage  the  letter-box  was,  telling  the  prisoner,  a  female  servant,  who 
was  not  authorized  to  receive  letters,  who  said  she  would  "  give  it  to 
them,"  but  who,  instead  of  doing  so,  stole  the  letter  and  its  contents : 
*Patteson,  J.,  held  that  this  was  not  a  "post  letter"  within  ptooo 
the  meaning  of  the  statute.  R.  v.  Harley,  1  C.  &  K.  89.  '- 
See  the  interpretation  clause,  supra,  p.  880. 

A  telegraphic  message  is  a  post  letter.  See  32  &  33  Vict.  c.  73,  s. 
23,  jiost,  tit.  "  Telegraphs." 

Proof  of  being  employed  by  or  under  the  post-office.     The  em- 


1100  POST-OFFICE — OFFENCES   RELATING   TO  THE. 

iiloyniont  of  the  oifciidcr  "  by  or  under  the  post-office  "  must  be  proved. 
[t  is  uot  necessary  in  these  cases  to  produce  the  actual  appointment  of  the 
prisoner,'it  is  sufficient  to  show  that  lie  acted  in  the  capacity  imputed  to 
him.  R.  V.  Borrett,  6  C.  &  P.  124,  25  E.  C.  L. ;  II.  v,  Rees,  Id.  606. 
The  prisoner  was  indicted  on  the  repealed  statute  7  Geo.  3,  c.  50  (which 
stated  the  special  capacities  of  the  parties  employed  in  the  post-office), 
in  the  first  and  third  counts,  as  "  a  person  employed  in  sorting  and 
chargintr  letters  in  the  post-office,"  in  the  second  and  fourth  counts  as 
"a  person  employed  in  the  business  relating  to  the  general  post-office;" 
it  appeared  that  he  was  only  a  sorter,  and  not  a  charger,  and  he  was 
convicted  on  the  second  and  fourth  counts  only.  It  was  objected  that 
as  he  was  acquitted  on  the  counts  charging  liim  as  a  sorter  and  charger, 
and  it  was  not  proved  that  he  v/as  em})loyed  in  any  other  capacity  than 
that  of  a  sorter,  he  ought  not  to  have  been  convicted  on  the  second  and 
fourth  counts.  The  judges  thought  the  objection  valid,  but  were  in- 
clined to  be  of  opinion  that  the  prisoner  might  have  been  properly  con- 
victed upon  the  first  and  third  counts  by  a  special  finding  that  he  was 
a  sorter  only.  R.  v.  Shaw,  2  East,  P.  C.  580 ;  2  W.  Bl.  789 ;  1  Leach, 
79.  In  a  subsequent  case  where  the  prisoner  was  described  as  a  post- 
boy and  rider,  and  was  proved  to  be  only  a  post-boy,  being  convicted,  the 
judges  held  the  conviction  right,  saying  that  a  post-boy  riding  on  horse- 
back wasa  rider  as  well  as  a  post-boy.  R.  v.  EUins,  Russ.  &  Ry.  188.  A 
person  employed  at  a  receiving-house  of  the  general  post-office  to  clean 
boots,  etc.,  and  w^ho  occasionally  assisted  in  tying  up  the  letter-bags, 
was  held  not  to  be  a  person  employed  by  the  post-office  within  the  52 
Geo.  3,  c.  143,  s.  2  (repealed).  R.'  v.  Pearson,  4  C.  &  P.  572.  S.  de- 
livered two  5/.  notes  to  Mrs.  D.,  the  wife  of  the  postmaster  of  C,  at 
which  post-office  money  orders  were  not  granted,  and  asked  her  to 
send  them  by  G.,  the  letter-carrier  from  C.  to  AV.,  in  order  that  he 
might  get  two  5^.  money  orders  for  them  at  the  W.  post-office.  Mrs.  D. 
gave  these  instructions  to  G.,  and  put  the  notes  by  his  desire  into  his 
bag.  G.  afterwards  took  the  notes  out  of  the  bag,  and  pretended, 
when  he  got  to  the  W.  post-office,  that  he  had  lost  them.  It  was 
found  by  the  jury  that  G.  had  no  intention  to  steal  the  notes  when 
they  were  given  to  him  by  ]Mrs.  D.  It  was  held  that  the  notes  were 
not  in  G.'s  possession  in  the  course  of  his  duty  as  a  post-office 
servant.  R.  v.  Glass,  1  Den.  C.  C.  R.  215.  The  prisoner  was  em- 
ployed to  carry  letters  from  C.  A.  to  F.,  such  employment  being 
complete  upon  the  delivery  of  the  letters  at  F.  Upon  one  occasion, 
at  the  request  of  the  postmaster  at  F.,  the  prisoner  assisted  in  sort- 
ing the  letters  at  that  place,  and  whilst  so  engaged  stole  one  of  the 
letters  containing  money.  It  was  held  by  the  Court  of  Criminal 
Appeal  that  the  prisoner  was  a  person  "  emploved  under  the  post- 
office,"  within  the  7  Will.  4  &  1  Vict.  c.  36,  s.  26.  R.  v.  Reason, 
1  Dears.  C.  C.  236.  Coleridge,  J.,  distinguished  R.  v.  Glass,  which 
had  been  relied  on  by  the  prisoner's  counsel,  observing  that  in  that 
case,  "  it  was  not  the  business  of  the  postmaster  to  get  money 
*8831  *oi"^6rs."  S.  the  postmistress  of  G.  received  from  A.  a  letter 
-•   unsealed,  but  addressed  to  B.,  and  with  it  1^.  for  a  post-office 


POST-OFFICE — OFFENCES   EELATING  TO  THE.  1101 

order,  3c?.  for  the  poundage  on  the  order,  Id.  for  the  postage,  and  Id. 
for  the  person  who  got  the  order.  S,  gave  the  letter  unsealed  and  the 
money  to  the  prisoner,  who  was  the  letter-carrier  from  G.  to  L.,  tell- 
ing him  to  get  the  order  at  L.,  and  inclose  it  in  the  letter,  and  post  the 
letter  at  L.  The  prisoner  destroyed  the  letter,  never  procured  the 
order,  and  kept  the  money.  Cresswell,  J.,  held  that  he  was  indictable 
under  s.  26  of  the  7  Will.  4  <&  1  Vict.  c.  36,  he  being  at  the  time  in 
the  employment  of  the  post-office.  R.  v.  Bickerstaff,  2  C.  &  K.  761, 
61  E.  C.  L. 

Where  the  prisoner  was  employed  by  a  postmistress  to  carry 
letters  from  D.  to  B.,  at  a  weekly  salary  paid  him  by  the  post- 
mistress, which  was  repaid  to  her  by  the  post-office,  it  was  held  that 
he  was  a  person  employed  by  the  post-office  within  the  52  Geo.  3, 
c.  143,  s.  2  (repealed).  R.  v.  Salisbury,  5  C.  &  P.  155.  In  the  above 
case,  Patteson,  J.,  was  inclined  to  think  that  the  words,  "  whilst  em- 
ployed," in  the  second  section,  merely  meant  that  the  party  should 
be  then  in  the  employ  of  the  post-office,  and  not  that  the  letter 
stolen  should  be  in  the  party's  hands  in  the  course  of  his  duty.     Id. 

Where  a  prisoner  was  a  letter-carrier  employed  by  the  post-office 
to  deliver  letters  about  Gloucester,  and  had  been  in  the  habit  of 
calling  at  the  lodge  of  the  Gloucester  infirmary,  and  receiving  letters 
there,  and  a  penny  upon  each  to  prepay  the  postage,  and  his  practice 
was  to  deliver  these  letters  at  the  Gloucester  post-office ;  but  he 
sometimes  omitted  to  call  at  the  lodge,  and  then  the  letters  were 
taken  by  some  person  and  put  into  the  post-office ;  and  during  the 
time  the  prisoner  had  been  ill,  another  person  who  performed  these 
duties  had  also  called  at  the  lodge,  and  received  the  letters  and  the 
pennies  and  delivered  them  at  the  post-office  in  the  same  way  as  the 
prisoner.  Evidence  was  also  given  to  shoAV  that  the  prisoner  had 
embezzled  pence  received  at  the  lodge  to  prepay  letters.  It  was  ad- 
mitted that  proof  that  the  prisoner  acted  as  a  letter-carrier,  was 
sufficient  to  show  that  he  held  that  situation,  but  it  was  urged  that 
wdiere  the  charge  was  of  embezzling  money  received  by  virtue  of  his 
employment,  it  must  be  shown  that  it  was  the  duty  of  the  prisoner  to 
receive  the  money,  and  in  this  case  it  was  his  mere  voluntary  act,  and 
he  was  neither  bound  to  go  to  the  lodge  nor  to  receive  the  letters ; 
but  it  was  held  by  Coleridge,  J.,  that  there  was  evidence  to  go  to  the 
jurv,  that  the  pence  were  received  by  virtue  of  the  prisoner's  employ- 
ment.    R.  v.  Townsend,  Carr.  &  M.  178,  41  E.  C.  L. 

Proof  of  stealing,  embezzling,  secreting,  or  destroying.  To  prove 
a  larceny  of  a  letter,  or  of  a  letter  containing  money,  etc.,  as  the  case 
may  be,  the  ownership  of  the  property  need  not  be  proved,  but  may 
be  laid  in  the  postmaster-general ;  neither  need  it  be  shown  to  be  of 
any  value. 

Where  the  charge  is  for  embezzling,  etc.,  the  prosecutor  must  prove 
that  the  prisoner  either  embezzled,  secreted,  or  destroyed  the  letter 
described.  Where  the  prisoner  secreted  lialf  a  bank-note  on  one  day, 
and  the  other  half  on  another  day,  it  was  held  to  be  a  secreting  of  the 


1102  POST-OFFICE — OFFENCES   RELATING    TO  THE. 

note  within  the  7  Geo.  3,  c.  50  (repealed).  The  doubt  was,  whether 
secreting  in  the  statute  did  not  mean  the  original  secretiug,  as  taking 
does ;  but  the  judges  distinguished  between  taking  and  secreting,  for 
*««_n  *^ftcr  the  prisoner  had  got  possession  of  the  second  letter  he 
^^^-1  secreted  both.  R.  v.  Moore,  2  East,  P.  C.  682.  The  stat.  52 
Geo.  3,  mentioned  "any  part  of  any  bill,"  etc.  The  secreting  will  be 
proved  in  general  by  circumstantial  evidence. 

A  person  employed  in  the  post-office  committed  a  mistake  in  the 
sorting  of  two  letters  containing  money,  and  he  threw  the  letters  un- 
opened, and  the  money,  down  a  water-closet  in  order  to  avoid  a 
penalty  attached  to  sur'h  mistake.  It  was  held  that  this  was  a  lar- 
ceny of  the  letters  and  money,  and  also  a  secreting  of  the  letters  within 
7  Will.  4  &  1  Vict.  c.  36,  s.  26.  R.  v.  Wynn,  1  Den.  C.  C.  R.  365; 
18  L.  J.,  M.  C.  51. 

Where  such  is  the  charge,  it  must  appear  that  the  letter  contained 
some  chattel,  money,  or  valuable  security.  Where  the  letter  em- 
bezzled was  described  as  containing  several  notes,  it  M^as  held  suffi- 
cient to  prove  that  it  contained  any  one  of  them,  the  allegation  not 
being  descriptive  of  the  letter,  but  of  the  offi^nce.  R.  v.  Ellins,  Russ. 
&  R.  188.  It  is  not  necessary  to  prove  the  execution  of  the  instru- 
ments which  the  letter  is  proved  to  contain.  Id.  Country  bank- 
notes paid  in  London,  and  not  reissued,  were  held  within  the  7  Geo. 
3,  c.  50  (repealed).  They  were  said  to  be  valuable  to  the  possessors 
of  them,  and  available  against  the  makers  of  them,  and  fell  within 
both  the  words  and  meaning  of  the  Act.  R.  v.  Ransom,  Russ.  &  Ry. 
232  ;  2  Leach,  1090 ;  ace.  R.  v.  West,  Dears.  &  B.  C.  C.  109.  Upon 
an  indictment  under  the  7  Geo.  3,  c.  50,  it  was  held  that  a  bill  of 
exchange  might  be  described  as  a  warrant  for  the  payment  of  money, 
as  in  cases  of  forgery.  R.  v.  Willoughby,  2  East,  P.  C.  581.  A  post- 
office  order  for  the  payment  of  money  in  the  ordinary  form,  is  a 
warrant  and  order  for  the  payment  of  money,  and  may  be  so  described 
in  an  indictment  for  larceny.  R.  v.  Gilchrist,  2  M.  C.  C.  233  ;  C.  & 
M.  224,  41  E.  C.  L.;  R.  v.  Vanderstein,  10  Cox,  C.  C.  (Irish),  177. 
Neither  the  former  statutes  nor  the  52  Geo.  3,  c.  143  (now  repealed)  con- 
tained the  word  "coin  "  or  "  money."  The  prisoner  was  indicted  under 
the  former  statute  for  stealing  5s.  3c?.  in  gold  coin,  being  a  sorter  in  the 
post-office,  and  it  was  objected  that  as  the  letters  contained  money,  and 
not  securities  for  money,  the  case  was  not  within  the  Acts,  and  the  court 
(at  the  Old  Bailey)  being  of  this  opinion,  the  prisoner  was  acquitted. 
R.  V.  Skutt,  2  East,  P.  C.  582.  The  security  specified  in  the  statute 
must  be  valid  and  available,  and  therefore  a  draft  purporting  to  be 
drawn  in  London,  but  drawn  in  Maidstone,  and  having  no  stamp 
upon  it  pursuant  to  the  31  Geo.  3,  c.  25  (repealed),  was  held  not  to 
be  a  draft  within  the  7  Geo.  3,  c.  50.  R.  v.  Pooley,  Russ.  &  Ry.  12 ; 
2  Leach,  887  ;  3  Bos.  &.  Pul.  311. 

A  servant  being  sent  with  a  letter,  and  a  penny  to  pay  the  postage, 
and  finding  the  office  shut,  put  the  penny  inside  the  letter,  and  fastened 
it  by  means  of  a  pin,  and  then  put  the  letter  into  the  box.  A  mes- 
senger in  the  general  post-office  stole  this  letter  with  the  penny  in  it. 


POST-OFFICE — OFFENCES   EELATING  TO  THE.  1103 

It  was  held  by  Lord  Denman,  C.  J.,  that  the  prisoner  might  be  con- 
victed of  stealing  a  post  letter  containing  money,  although  the  money 
was  not  put  into  the  letter  for  the  purpose  of  being  conveyed  by  means 
of  it  to  the  perst)n  to  whom  it  was  addressed.  R.  v.  Mence,  Carr.  & 
M.  234,  41  E.  C.  L. 

It  seems  that  the  contents  of  the  letter  secreted,  etc.,  will  not  be 
evidence  as  against  the  prisoner  to  prove  that  the  letter  contained  the 
valuable  security  mentioned  in  it.  R.  v.  Plumar,  Russ.  &  Ry.  264. 
The  letter  in  question  had  marked  upon  it,  "  paid  2s."  which  was  the 
*rate  of  double  postage.  This  was  written  by  the  clerk  of  the  t^qok 
writer  of  the  letter,  who  had  paid  the  postage,  but  was  not  called.  L 
There  being  no  other  proof  of  the  double  postage,  the  judges  held  the 
conviction  wrong.     Id. 

The  prisoner  having  been  indicted  under  the  repealed  statutes  5 
Geo.  3,  c.  25,  s.  17,  and  7  Geo.  3,  c.  50,  s.  3,  the  jury  found  specially 
that  he  was  a  person  employed  by  the  post-office  in  stamping  and 
facing  letters,  and  that  he  secreted  a  letter  which  came  into  his  hands 
by  virtue  of  his  office,  containing  a  10^.  note,  but  that  he  did  not  open 
the  same,  nor  know  that  the  bank-note  was  contained  therein,  but  that 
he  secreted  it  with  intent  to  defraud  the  king  of  the  postage,  which 
had  been  paid.  The  prisoner,  it  is  said,  remained  in  prison  several 
years,  but  no  judgment  appears  to  have  been  given.  R.  v.  Sloper,  2 
East,  P.  C.  583 ;  1  Leach,  81. 

Where  the  prisoner,  with  intent  to  steal  the  mail-bags,  pretended 
to  be  the  guard,  and  procured  them  to  be  let  down  to  him  from  the 
window  by  a  string,  and  carried  them  away ;  being  indicted  on  the  7 
Geo.  3,  c.  50  (repealed),  and  found  guilty,  all  the  judges  held  the  con- 
viction right,  on  a  count  for  stealing  the  letters  out  of  the  post-office, 
for  his  artifice  in  obtaining  the  delivery  of  them  in  the  bag  out  of  the 
house,  was  the  same  as  if  he  had  actually  taken  them  out  himself.  R. 
V.  Pearce,  2  East,  P.  C  603.  See  R.  v.  Kay,  infra,  ace.  Upon  the 
same  statute  it  was  held,  that  a  letter-carrier  taking  letters  out  of  the 
office,  intending  to  deliver  them  to  the  owners,  but  to  embezzle  the 
postage,  could  not  be  indicted  for  stealing  such  letters.  R.  v.  Howatt, 
2  East,  P.  C.  604. 

The  above  statute  made  it  an  offence  to  steal  from  the  possession 
(not  from  the  person)  of  persons  employed  to  convey  letters,  etc. 
Therefore,  where  a  mail- rider,  after  fixing  the  portmanteau  con- 
taining the  letters  on  his  horse,  fastened  his  horse  at  the  post-office, 
and  went  to  a  house  about  thirty  yards  distant  for  his  great  coat, 
and  in  the  meantime  the  prisoner  came  and  stole  the  letters,  it 
was  held  by  Wood,  B.,  that  the  case  was  within  the  statute,  for  that 
the  letters  had  been  in  the  possession  of  the  mail-rider,  and  that  pos- 
session had  never  been  abandoned.  R.  v.  Robinson,  2  Stark.  N.  P.  C. 
485,  3  E.  C.  L. 

"What  is  a  post-office.  With  regard  to  what  was  to  be  considered 
a  "  post-office  "  within  the  above  statute,  it  was  held  that  a  "  receiving 
house  "  was  not  such,  but  such  house  was  "  a  place  for  the  receipt  of 


1104  POST-OFFICE — OFFENCES   EELATING  TO  THE. 

letters "  within  the  Act ;  and,  if  a  shop,  tlie  whole  shop  vras  to  be 
considered  as  "  a  phicc  for  the  rcceii)t  of  letters/'  and,  therefore,  the 
pntting  of  a  letter  on  the  shop  counter,  or  giving  it  to  a  person  belong- 
ing to  the  shop,  was  a  putting  into  the  post.  11.  v.  Pearson,  4  C.  & 
P.  572,  19  E.  C.  L.  To  eomi)lcte  the  otfence  under  the  4th  s(;c;tion  of 
the  52  (Jeo.  3,  c.  143,  of  stealing  a  letter  from  the  place  of  receipt,  it 
was  held,  that  the  letter  should  be  carried  wholly  out  of  the  shop,  and, 
theref  jre,  if  a  person  opened  a  letter  in  the  shop,  and  there  stole  the 
contents,  without  taking  the  letter  out  of  the  shop,  the  ease  was  not 
within  the  statute.  R.  v.  Pearson,  supra.  See  R.  v.  Harley,  cmte,  p. 
882,  and  the  interpretation  clause,  p.  879. 

In  whose  possession  letters  are  on  their  way  through  the  post — 
authority  of  servants  to  part  with  the  property.  The  pers(jn  M'ho 
j^^Qo-|  has  possession  of  the  letter  during  its  course  through  the 
J  *post-office  has  the  bare  custody  of  a  servant  only,  and  has 
not  the  possession  of  a  bailee.  R.  v.  Pearce,  2  East,  P.  C.  G09.  The 
owner  of  a  watch  placed  it  with  the  seller  to  be  regulated,  and  the 
prisoner,  pretending  that  he  was  the  owner,  desired  the  watchmaker  to 
send  the  watch  by  post  directed  in  a  certain  manner,  and  then  by  a 
further  fraud  obtained  the  parcel  containing  the  watch  from  the  post- 
office.  He  was  held  to  be  rightly  convicted  of  larceny.  R.  v.  Kay, 
Dears.  &  B.  C.  C.  231  ;  26  L.  J.,  M.  C.  119.  The  prisoner  for  his 
own  fraudulent  purposes  stopped  a  letter-carrier,  and  by  a  lie  induced 
him  to  deliver  up  letters  directed  to  other  persons,  the  learned  judge 
mentioning  the  case  of  R.  v.  Middleton,  infra,  the  reasons  for  the  de- 
cision in  which  were  not  then  given,  ruled  that  the  letter-carrier  could 
not  be  held  to  be  the  agent  of  the  postmaster-general  for  the  purpose 
of  wrongfully  giving  up  the  letter.  R.  v.  Dowdeswell,  per  Denman, 
J.,  Derby  Spring  As'sizes,  1873.  In  R.  v.  Middleton,  L.  R.,  2  C.  C. 
38 ;  42  L.  J.,  M.  C.  (the  facts  of  which  are  stated,  ante,  p.  652),  it 
was  held  by  Bovill,  C.  J.,  Kelly,  C.  B.,  and  Keating,  J.,  that  the 
clerk  of  the  post-office  had  no  property  in  the  money  or  power  to 
part  with  it  to  the  prisoner,  and  that  the  authority  of  the  clerk  to 
hand  over  the  money  was  a  special  authority  not  pursued  ;  but  by 
Brarawell,  B.,  and  Brett,  J.,  that  the  clerk  had  authority  to  part 
with  the  property.  The  rest  of  the  fifteen  judges  decided  the  case 
on  other  grounds.  See  R.  v.  Cryer,  infra,  tit.  "Receiving  Stolen 
Goods." 


PRISON   BREACH.  1105 


•PRISON  BREACH.  [*887 

PAGE 

Proof  of  the  nature  of  the  offence  for  which  the  prisoner  was  im- 
prisoned          ;        .        .        .        .  887 

of  the  imprisonment  and  the  nature  of  the  prison       .        .  888 

of  the  breaking  of  the  prison 888 

Punishment 889 

Conveying  tools,  etc.,  to  prisoners  to  assist  in  escape         .        .        ,  889 

Special  enactments 890 

Where  a  person  is  in  custody  on  a  charge  of  treason  or  felony 
and  effects  his  escape  by  force,  the  offence  is  a  felony  at  common  law ; 
where  he  is  in  custody  on  a  minor  charge,  it  is  a  misdemeanor.  1 
Russ.  Cri.  577,  5th  ed. ;  see  statute  1  Edw.  2,  st,  2,  infra. 

Upon  a  prosecution  for  prison  breach  the  prosecutor  must  prove, 
1,  the  nature  of  the  offence  for  which  the  prisoner  was  imprisoned  ;  2, 
the  imprisonment  and  the  nature  of  the  prison  ;  and  3,  the  breaking 
of  the  prison. 

Proof  of  the  nature  of  the  offence  for  which  the  prisoner  was  im- 
prisoned. The  statute  de  frangentibus  prisonam,  1  Edw.  2,  st.  2, 
enacts,  "  that  none  henceforth  that  breaks  prison  shall  have  judgment 
of  life  or  member  for  breaking  of  prison  only,  except  the  cause  for 
which  he  was  taken  or  imprisoned  did  require  such  a  judgment,  if  he 
had  been  convicted  thereupon  according  to  the  law  and  custom  of  the 
realm."  If  the  offence,  therefore,  for  which  the  party  is  arrested  does  not 
require  judgment  of  life  or  member,  it  is  not  be  a  felony.  1  Russ.  Cri. 
578,  5th  ed.  And  though  the  offence  for  which  the  party  is  commit- 
ted is  supposed  in  the  mittimus  to  be  of  such  a  nature  as  requires  a 
capital  judgment,  yet  if  in  the  event  it  be  found  of  an  inferior  nature, 
it  seems  difficult  to  maintain  that  the  breaking  can  be  a  felony.  Id. 
It  seems  that  the  stating  the  offence  in  the  mittimus  to  be  one  of  lower 
degree  thail  felony,  will  not  prevent  the  breaking  from  being  a  felony, 
if  in  truth  the  original  offence  was  such.  Hawk.  P.  C.  b.  2,  c.  18,  s. 
15  ;  1  Russ.  Cri.  578,  5th  ed,,  vide.  A  prisoner,  on  a  charge  of  high 
treason,  breaking  prison,  is  only  guilty  of  a  felony.  Hawk.  P.  C.  b.  2, 
c.  18,  s.  15.  It  is  immaterial  whether  the  party  breaking  prison  had 
been  tried  or  not.     Id.  s.  16. 

Whenever  a  party  is  in  lawful  custody  on  a  charge  of  felony, 
whether  he  has  been  taken  upon  a  capias,  or  committed  on  a  mittimus, 
he  is  within  the  statute,  however  innocent  he  may  be,  or  however 
groundless  may  be  the  prosecution  against  him  ;  for  he  is  bound  to 
submit  to  his  imprisonment,  until  he  is  discharged  bv  due  course  of 
law.  2  Inst.  590 ;  1  Hale,  610  ;  2  Hawk.  c.  18^  s.  5.'  A  party  may 
""therefore  be  convicted  of  the  felony  for  breaking  prison  be-  r^, 
fore  he  is  convfcted  of  the  felony  for  which  he  was  impris-  ^ 
70 


1106  PEISON   BREACH. 

onotl ;  tlie  procooding  in  this  instance  differing  from  cases  of  escape 
and  rescue.  2  Inst.  592  ;  1  Hale,  611  ;  2  Hawk.  c.  18,  s.  18.  But 
although  it  is  immaterial  whether  or  not  the  prisoner  has  been  con- 
victed of  the  oifence  which  he  has  been  charged  Avith,  yet  if  he  has 
been  tried  and  ae(j[uitted,  and  afrerwaixls  breaks  prison,  he  will  not  be 
subject  to  the  punishment  of  prison  breach.  And  even  if  the  indict- 
ment for  the  breaking  of  the  prison  be  before  the  acquittal,  and  he  is 
afterwards  acquitted  of  the  principal  felony,  he  may  plead  that  acquit- 
tal in  bar  of  the  indictment  for  felony  for  breach  of  jjrison,  1  Hale, 
P.  C.  611,  612.  But  a  dismissal  of  a  charge  by  magistrates  has  been 
said  to  be  not  tantamount  to  an  acquittal  upon  an  indictment.  R.  v. 
Waters,  12  Cox,  C.  C.  390,  per  Martin,  B. 

Proof  of  the  imprisonment  and  the  nature  of  the  prison.     The 

imprisonment,  in  order  to  render  the  party  guilty  of  prison  breaking 
must  be  a  lawful  im])risonment ;  actual  imprisonment  will  not  be  suffi- 
cient ;  it  must  be  primd  facie  justifiable.^  Therefore  where  a  felony 
has  been  committed,  and  the  prisoner  is  aj)prehended  for  it  without 
cause  of  suspicion,  and  the  mittimus  is  informal,  and  he  breaks  prison, 
this  will  not  be  felony,  though  it  would  be  otherwise  if  there  were 
such  cause  of  suspicion  as  would  form  a  justification  for  his  arrest. 
Hawk.  P.  C.  b.  2,  c.  11,  ss.  7,  15;  1  Hale,  P.  C.  610.  So  if  no 
felony  has  in  fact  been  committed,  and  the  party  is  not  indicted,  no 
mittimus  will  make  him  guilty  Mathin  the  statute,  his  imprisonment 
being  unjustifiable.  Id.  But  if  he  be  taken  upon  a  capias  awarded 
on  an  indictment  against  him,  it  is  immaterial  whether  he  is  guilty  or 
innocent,  and  whether  any  crime  has  or  has  not  in  fact  been  commit- 
ted, for  the  accusation  being  on  record,  makes  his  imprisonment  law- 
ful, though  the  prosecution  be  groundless.  Hawk.  P.  C.  b.  2,  c.  18, 
ss.  5,  6. 

The  statute  extends  to  a  prison  in  law,  as  well  as  to  a  prison  in 
deed.  2  Inst.  599.  An  imprisonment  in  the  stocks,  or  in  the  house 
of  him  who  makes  the  arrest,  or  in  the  house  of  another,  in  sufficient. 
1  Hale  P.  C.  609.  So  if  a  party  arrested,  violently  rescues  himself 
from  the  hands  of  the  party  arresting  him.  Id.  The  imprisonment 
intended  is  nothing  more  than  a  restraint  of  liberty.  Hawk.  P.  C.  b. 
2,  c.  18,  s.  4. 

It  is  sufficient  if  the  gaoler  has  a  notification  of  the  offence  for 
which  the  prisoner  is  committed,  and  the  prisoner  of  the  offence  for 
which  he  was  arrested,  and  commonly,  says  Lord  Hale,  he  knows  his 
own  guilt,  if  he  is  guilty,  without  much  notification.    1  Hale  P.  C.  610. 

Proof  of  the  breaking  of  the  prison.  An  actual  breaking  of  the 
prison  with  force,  and  not  merely  a  constructive  breaking,  must  be 

'  State  V.  Leach,  7  Conn.  752.  Where  the  sole  object  of  a  prisoner  illegally  con- 
fined is  to  liberate  himself,  he  is  not  liable,  though  other  real  criminals,  by  means  of 
his  prison  breach,  escape.     Id.     S. 

An  acquittal  of  the  crime  for  which  the  defendant  was  arrested  is  no  defence  to 
an  indictment  for  prison  breach.    State  v.  Lewis,  19  Kan.  260. 


PRISON   BREACH.  1107 

proved.  If  a  gaoler  sets  open  the  prison  doors,  and  the  prisoner 
escapes,  this  is  no  felony  in  the  latter.  1  Hale,  P.  C.  611.  And  if 
the  prison  is  fired,  and  the  prisoner  escapes  to  save  his  life,  this  ex- 
cuses the  felony,  unless  the  prisoner  himself  set  fire  to  the  prison. 
Id.  In  these  cases  the  breaking  amounts  to  a  misdemeanor  only. 
The  breaking  must  be  by  the  prisoner  himself,  or  by  his  procure- 
ment, for  if  other  persons  without  his  privity  or  consent  break  the 
prison,  and  he  escape  through  the  breach  so  made,  he  cannot  be 
*indicted  for  the  breaking,  but  only  for  the  escape.  2  Hawk.  r*r.QQ 
c.  18,  s.  10.  No  breach  of  prison  will  amount  to  felony,  un-  •- 
less  the  prisoner  actually  escape.  2  Hawk.  c.  18,  s.  12  ;  2  Inst.  590; 
1  Hale,  611.  A  prisoner  convicted  of  felony  made  his  escape  over  the 
walls  of  a  prison,  in  accomplishing  which  he  threw  down  some  bricks 
from  the  top  of  the  wall,  which  had  been  placed  there  loose,  without 
moitar,  in  the  form  of  pigeon  holes,  for  the  purpose  of  preventing  es- 
capes. Being  convicted  of  prison  breaking,  a  doubt  arose  whether 
there  was  such  force  as  to  constitute  that  offence,  but  the  judges  were 
unanimously  of  opinion  that  the  conviction  was  right.  R.  v.  Haswell, 
Russ.  &  Ry.  458. 

Punishment.  Although  to  break  prison  and  escape,  when  lawfully 
committed  for  any  treason  or  felony,  still  remains  felony  as  at  common 
law,  the  breaking  prison  when  lawfully  confined  upon  any  other  in- 
ferior charge,  is  punishable  only  as  a  high  misdemeanor  by  fine  and 
imprisonment.     4  Bl.  Com.  130;  2  Hawk.  c.  18,  s.  21. 

By  the  7  &  8  Geo.  4,  c.  28,  s.  8,  "every  person  convicted  of  any 
felony  not  punishable  with  death,  shall  be  punished  in  the  manner  pre- 
scribed by  the  statute  or  statutes  especially  relating  to  such  felony ; 
and  every  person  convicted  of  any  felony,  for  which  no  punishment 
hath  been,  or  hereafter  may  be  specially  provided,  shall  be  deemed  to 
be  punishable  under  this  Act,  and  shall  be  liable,  at  the  discretion  of 
the  court,  to  be  transported  beyond  the  seas  [now  penal  servitude]  for 
the  term  of  seven  years,  or  to  be  imprisoned  for  any  term  not  exceed- 
ing two  years  ;  and  if  a  male,  to  be  once,  twice,  or  thrice  publicly  or 
privately  whipped  (if  the  court  shall  so  think  fit)  in  addition  to  such 
imprisonment." 

By  s.  8,  in  cases  of  imprisonment,  the  court  may  award  hard  labor 
and  solitary  confinement ;  but  the  latter  is  not  to  exceed  one  month  at 
a  time,  and  three  months  in  any  one  year. 

By  the  Irish  statutes,  the  1  &  2  Will.  4,  c.  44,  s.  4,  every  person 
who  shall  by  force  or  violence  break  open  any  gaol,  prison,  or  bride- 
well, with  an  intention  to  rescue  and  enlarge  himself,  or  any  other 
prisoner  therein  confined  on  account  of  any  offence,  though  the  same 
be  not  capital,  shall  be  transported  for  life,  or  for  seven  or  fourteen 
years  ;  or  be  imprisoned,  with  or  without  hard  labor,  for  any  term  not 
exceeding  three  years  ;  and  if  a  male,  be  once,  twice,  or  thrice  pub- 
licly or  privately  whipped,  if  the  court  shall  think  fit,  in  addition  to 
such  imprisonment ;  and  shall  and  may  be  tried  before  the  trial  of  the 
person  or  persons  so  enlarged. 


1108  PRISON    BREACH. 

Conveying  tools,  etc.,  to  prisoners  to  assist  in  escape.  By  the 
28  &  29  Vict.  c.  126,  s.  37,  "  every  person  wlio  aids  any  prisoner  in 
escaping  or  attempting  to  escape  from  any  prison,  or  who,  with  intent 
to  iacilitate  the  escape  of  any  prisoner,  conveys  or  canses  to  be  con- 
veyed into  any  prison  any  such  mask,  dress,  or  other  disguise,  or  any 
letter,  or  any  otlier  article  or  thing,  shall  be  guilty  of  felony,  and  on 
conviction  be  sentenced  to  imprisonment  with  hard  labor  for  a  term 
not  exceeding  two  years."  By  the  interpretation  clause,  "prison" 
shall  mean  gaol,  house  of  correction,  bride^\ell,  or  penitentiary;  it 
shall  include  the  airing  grounds  or  other  grounds  or  buildings  oc- 
cupied by  prison  officers  for  the  use  of  the  prison,  and  contiguous 
thereto. 

The  repealed  statute  4  Geo.  4,  c.  64,  contained  the  words  "  or  any 

instrument  or  arms,"  etc.,  but  it  has  been  held  that  the  words    "  any 

*«Qm   *other  article  or  thing "  are  more  general,   and  will  include 

^^^-1  a  crowbar.    R.  v.  Payne,  8  L.  R.  1  C.  C.  27 ;    35  L.  J.,  M. 

C.  170. 

An  indictment  under  section  43  of  the  repealed  statute  need  not  have 
set  out  the  means  which  had  been  used  by  the  defendant  to  assist  the 
prisoner  to  escape.  R.  v.  Holloway,  2  Den.  C.  C.  R.  287.  In  that 
case  the  indictment  charged  that  A.,  being  a  prisoner  in  a  gaol,  was 
meditating  and  endeavoring  to  effect  his  escape,  and  had  procured  a 
key  to  be  made  with  intent  to  effect  his  escape,  and  had  made  overtures 
to  the  defendant,  then  and  there  being  a  turnkey  in  the  said  gaol,  to 
induce  the  defendant  to  aid  and  assist  him  to  escape  ;  that  the  defend- 
ant then  and  there,  and  whilst  A.  was  such  prisoner  in  the  gaol,  re- 
ceived the  said  key  with  intent  to  enable  A.  to  escape  from  the  gaol, 
and  go  at  large  withersoever  he  would  ;  and  so  the  defendant  then  and 
there  feloniously  did  aid  and  assist  A.,  then  and  there  being  such 
prisoner,  in  so  attempting  to  escape  from  the  gaol.  It  was  held  that 
the  offence  was  stated  with  sufficient  particularity,  and  that  the  aiding 
and  assisting  sufficiently  appeared  to  be  an  illegal  act.  It  was  held, 
also,  that  the  prosecution  need  not,  under  this  statute,  be  instituted 
within  one  year  after  the  offence  committed,  as  was  required  by  16 
Geo.  2,  c.  31,  s.  4. 

Special  enactments.  The  offence  of  prison  breach  is  made  the 
subject  of  special  provisions  in  various  statutes.  Thus,  by  the 
5  &  6  Vict.  c.  29,  s.  24,  prison  breaking  from  Pentonville 
prison,  and  by  the  6  &  7  Vict.  c.  26,  s.  22,  prison  breaking 
from  the  Penitentiary  at  Millbank,  are  made  punishable  by  addi- 
tional imprisonment  for  three  years,  and  in  case  of  a  second 
offence,  by  transportation  for  seven  years,  or  imprisonment  not  ex- 
ceeding two  years,  with  or  without  hard  labor,  and  with  or  without 
solitary  confinement,  and  if  a  male,  with  once,  twice,  or  thrice 
whipping,  public  or  private,  at  the  discretion  of  the  court.  A  similar 
punishment  is  enacted  by  the  1  &  2  Vict.  c.  82,  s.  12,  for  prison 
breach  from  Parkhurst  prison. 


PUBLIC  COMPANIES — OFFENCES  BY  OFFICERS  OF,  1109 


♦PUBLIC  COMPANIES— OFFENCES  BY  OFFICERS  OF.         [*891 

Embezzlement  of  property.  By  the  24  &  25  Vict.  c.  96,  s.  81, 
"  whosoever,  being  a  director,  member,  or  public  officer  of  any  body 
corporate  or  public  company,  shall  fraudulently  take  or  apply  for  his 
own  use  or  benefit,  or  for  any  use  or  purposes  other  than  the  use  or 
purposes  of  such  body  corporate  or  public  company,  an^  of  the  prop- 
erty of  such  body  corporate  or  public  company,  shall  be  guilty  of 
a  misdemeanor,  and  being  convicted  thereof  shall  be  liable,  at  the 
discretion  of  the  court,  to  any  of  the  punishments  which  the  court 
may  award,  as  hereinbefore  last  mentioned,"  namely,  penal  servi- 
tude not  exceeding  seven  years  and  not  less  than  three  [now  five] 
years,  or  imprisonment  not  exceeding  two  years,  with  or  without 
hard  labor,  and  with  or  without  solitary  confinement.  See  s.  75,  supra, 
p.  278. 

Keeping  fraudulent  accounts.  By  s.  82,  "  whosoever,  being  a 
director,  public  officer,  or  manager  of  any  body  corporate  or  public 
company,  shall,  as  such,  receive  or  possess  himself  of  any  of  the 
property  of  such  body  corporate  or  public  company,  otherwise  than 
in  payment  of  a  just  debt  or  demand,  and  shall,  with  intent  to 
defraud,  omit  to  make,  or  to  cause  or  direct  to  be  made,  a  full  and 
true  entry  thereof  in  the  books  and  accounts  of  such  body  corporate 
or  public  company,  shall  be  guilty  of  a  misdemeanor."  The 
punishment  is  the  same  as  for  the  oifence  mentioned  in  the  last 
section. 

Destroying  or  falsifying  books,  etc.  By  s.  83,  "  whosoever,  being 
a  director,  manager,  public  officer,  or  member  of  any  body  corporate 
or  public  company,  shall,  with  intent  to  defraud,  destroy,  alter, 
mutilate,  or  falsify  any  book,  paper,  writing,  or  valuable  security 
belonging  to  the  body  corporate  or  public  company,  or  make  or  con- 
cur in  the  making  of  any  false  entry,  or  omit  or  concur  in  omitting 
any  material  particular  in  any  book  of  account  or  other  document, 
shall  be  guilty  of  a  misdemeanor."  The  punishment  is  the  same  as 
before. 

Publishing  fraudulent  statements.  By  s.  84,  "  whosoever,  being 
a  director,  manager,  or  public  officer  of  any  body  corporate  or  public 
company,  shall  make,  circulate,  or  publish,  or  concur  in  making,  cir- 
culating, or  publishing,  any  written  slatement  or  account  which  he 
shall  know  to  be  false  in  any  material  particular,  with  intent  to 
deceive  or  defraud  any  member,  shareholder,  or  creditor  of  such  body 
corporate  or  public  company,  or  with  intent  to  induce  any  person  to 


niO  PUBLIC   COMPANIES OFFENCES   BY   OFFICERS   OF. 

become  a  shareholder  or  partner  therein,  or  to  intrust  or  advance  any 
property  to  such  body  corporate  or  public  company,  or  to  enter  into 
any  security  for  the  benefit  thereof,  shall  be  guilty  of  a  misdemeanor." 
The  same  punishment  as  before. 


*  Interpretation.  As  to  the  meaning  of  the  term  "  property," 
s.  1,  ante,  p.  640. 
These  offences  are  not  triable  at  quarter  sessions ;  see  s.  87. 


*8921 

-■  see  s.  1,  ante,  p.  640 


Protection  of  persons  accused.  Persons  accused  under  these  sec- 
tions are  not  protected  from  answering  ;  but  they  cannot  be  convicted 
of  any  offence  under  these  sections  if  they  have  previously  disclosed 
the  circumstances  relied  on  upon  oath  and  upon  compulsion ;  see  ante, 
p.  281. 

Falsification  of  books  of  joint-stock  company.     By  the  25  &  26 

Vict.  c.  89,  ss.  166—168,  officers,  etc.,  falsifying  books  in  the  course  of 
winding  up  are  guilty  of  a  misdemeanor,  and  liable  to  two  years^ 
hard  labor ;  and  provision  is  made  for  the  payment  of  the  expenses  of 
the  prosecution. 

As  to  falsification  of  accounts  by  other  persons,  see  38  Vict.  c.  24, 
ante,  p.  462. 

Oflfences  with  respect  to  declarations  by  railway  officers,  etc. 
See  29  &  30  Vict.  c.  108,  ss.  15-17,  and  31  &  32  Vict.  c.  119,  s.  5. 


RAILWAYS — OFFENCES   RELATING  TO.  1111 


♦RAILWAYS— OFFENCES  RELATING  TO.  [*893 

PAGE 

Signing  false  statements,  etc •        .        .        .  893 

Misconduct  of  servants  of  railway  companies 893 

Setting  fire  to  railway  stations 894 

Doing  certain  acts  with  intent  to  endanger  the  safety  of  passengers    .  894 

Endangering  the  safety  of  passengers 895 

Doing  certain  acts  with  intent  to  obstruct  or  injure  engines  or  car- 
riages ,,......•...  895 

Obstructing  engines  or  carriages 895 

Proof  of  intent 895 

Proof  of  place  being  a  railway 896 

Proof  of  obstruction 896 

Distinction  between  felonies  and  misdemeanors 896 

Signing  false  statements,  etc.  Delivering  mortgages,  bonds  or 
deeds  without  a  proper  declaration,  or  signing  a  false  declaration,  are 
offences  within  the  29  &  30  Vict.  c.  108,  ss.  15—17,  and  the  31  &  32 
Vict.  c.  119,  s.  5  ;  and  a  false  statement  upon  oath  to  an  inspector  is 
an  offence  under  s.  8  of  the  latter  act. 

Misconduct  of  servants  of  railway  companies.  By  the  3  &  4 
Vict.  c.  97,  s.  13,  "it  shall  be  lawful  for  any  officer  or  agent  of  any 
railway  company,  or  for  any  special  constable  duly  appointed,  and  all 
such  persons  as  they  may  call  to  their  assistance,  to  seize  and  detain 
any  engine-driver,  guard,  porter,  or  other  servant  in  the  employ  of 
such  company  who  shall  be  found  drunk  while  employed  upon  the 
railway,  or  commit  any  offence  against  any  of  the  by-laws,  rules,  or 
regulations  of  such  company,  or  shall  wilfully,  maliciously,  or  neg- 
ligently do  or  omit  to  do  any  act  whereby  the  life  or  limb  of  any  per- 
son passing  along  or  being  upon  the  railway  belonging  to  such  com- 
pany or  the  works  thereof  respectively,  shall  be  or  might  be  injured 
or  endangered,  or  whereby  the  passage  of  the  engines,  carriages,  or 
trains,  shall  be  or  might  be  obstructed  or  impeded,  and  to  convey  such 
engine-driver,  guard,  porter,  or  other  servant  so  offending,  or  any 
person  counselling,  aiding,  or  assisting  in  such  offence,  with  all  con- 
venient despatch,  before  some  justice  of  the  peace  for  the  place  within 
which  such  offence  shall  be  committed,  without  any  other  warrant  or 
authority  than  this  Act ;  and  every  such  person  so  offending,  and 
every  person  counselling,  aiding,  or  assisting  therein  as  aforesaid, 
shall,  M'hen  convicted  before  such  justice  as  aforesaid  (who  is  hereby 
authorized  and  required,  upon  complaint  to  him  made,  upon  oath, 
without  information  in  writing,  to  take  cognizance  thereof,  and 
to  act  summarily  in  the  premises),  in  the  discretion  of  such  justice, 
be  imprisoned  with  or  without  hard  labor,  for  any  term  not  ex- 
ceeding two  calendar  months,  or  in  the  like  discretion  of  such 
justice,  shall  for  every  such  offence  forfeit  to  her  Majesty  any  sum 
*not  exceeding  ten  pounds,  and  in  default  of  payment  thereof  r*oQ4 
shall  be  imprisoned,  with  or  without  hard  labor  as  aforesaid,  for  L 


1112  RAILWAYS — OFFENCES  RELATING  TO. 

such  period,  not  exceeding  two  calendar  montlis,  as  such  justice  shall 
appoint ;  such  commitment  to  be  determined  on  payment  of  the 
amount  of  the  penalty  ;  and  every  such  penalty  shall  be  returned  to 
the  next  ensuing  court  of  quarter  sessions  in  the  usual  manner.''  See 
the  provisions  of  this  section  extended  by  the  5  &  6  Vict.  c.  55,  s.  1 7 
(U.  K.). 

By  the  3  &  4  Vict.  c.  97,  s.  14  (if  upon  the  hearing  of  any  such 
complaint  he  shall  think  fit),  "it  shall  be  lawful  for  any  such  justice, 
instead  of  deciding  upon  the  matter  of  complaint  summarily,  to  com- 
mit the  person  or  persons  charged  with  such  offence  for  trial  for  the 
same  at  the  quarter  sessions  for  the  county  or  place  wherein  such 
offence  shall  have  been  committed,  and  to  order  that  any  such  person 
so  committed  shall  be  imprisoned  and  detained  in  any  of  her  Majesty's 
gaols  or  houses  of  correction  in  the  said  county  or  place  in  the  mean- 
time, or  to  take  bail  for  his  appearance,  with  or  without  sureties,  in 
his  discretion  ;  and  every  such  person  so  offending,  and  convicted  be-' 
fore  such  court  of  quarter  sessions  as  aforesaid  (which  said  court,  is 
hereby  required  to  take  cognizance  of  and  hear  and  determine  such 
complaint),  shall  be  liable,  in  the  discretion  of  such  court,  to  be  im- 
prisoned, with  or  without  hard  labor,  for  any  term  not  exceeding  two 
years." 

Setting  fire  to  railway  stations.  See  24  &  25  Vict.  c.  97,  s.  4, 
supra,  p.  285, 

Doing  certain  acts  with  intent  to  endanger  the  safety  of 
passengers.  By  the  24  &  25  Vict.  c.  100,  s.  32,  "whosoever  shall 
unlawfully  and  maliciously  put  or  throw  upon  or  across  any  railway 
any  wood,  stone,  or  other  matter  or  thing,  or  shall  unlawfully  and 
maliciously  take  up,  remove,  or  displace  any  rail,  sleeper,  or  other 
matter  or  thing  belonging  to  any  railway,  or  shall  unlawfully  and 
maliciously  turn,  move,  or  divert  any  points  or  other  machinery  be- 
longing to  any  railway,  or  shall  unlawfully  and  maliciously  make  or 
show,  hide  or  remove  any  signal  or  light  upon  or  near  to  any  railway, 
or  shall  unlawfully  and  maliciously  do  or  cause  to  be  done  any  other 
matter  or  thing,  with  intent,  in  any  of  the  cases  aforesaid,  to  endanger 
the  safety  of  any  person  travelling  or  being  upon  such  railway,  shall 
be  guilty  of  felony,  and  being  convicted  thereof  shall  be  liable,  at  the 
discretion  of  the  court,  to  be  kept  in  penal  servitude  for  life,  or  for 
any  term  not  less  than  three  [now  five]  years,  or  to  be  imprisoned  for 
any  term  not  exceeding  two  years,  with  or  without  hard  labor,  and,  if 
a  male  under  the  age  of  sixteen  years,  with  or  without  whipping." 

By  s.  33,  "whosoever  shall  unlawfully  and  maliciously  throw,  or 
cause  to  fall  or  strike  at,  against,  into,  or  upon  any  engine,  tender, 
carriage,  or  truck  used  upon  any  railway,  any  wood,  stone,  or  other 
matter  or  thing  with  intent  to  injure  or  endanger  the  safety  of  any 
person  being  in  or  upon  such  engine,  tender,  carriage,  or  truck,  or  in 
or  uj)on  any  other  engine,  tender,  carriage,  or  truck  of  any  train  of 
which  such  first-mentioned  engine,  tender,  carriage,  or  truck  shall 
form  part,  shall  be  guilty  of  felony,  and  being  convicted  thereof  shall 


RAILWAYS OFFENCES   RELATING   TO.  1113 

be  liable,  at  the  discretion  of  the  court,  to  be  kept  in  penal  servitude 
for  life,  or  for  any  term  not  less  than  three  [now  five]  years, — or  to  be 
*imprisoned  for  any  term  not  exceeding  two  years,  with  or  r*oQK 
without  hard  labor."  ^ 

Endangering  the  safety  of  passengers.  By  s.  34,  "  whosoever, 
by  any  unlawful  act,  or  by  any  wilful  omission  or  neglect,  shall  en- 
danger or  cause  to  be  endangered  the  safety  of  any  person  conveyed 
or  being  in  or  upon  a  railway,  or  shall  aid  or  assist  therein,  shall  be 
guilty  of  a  misdemeanor,  and  being  convicted  thereof  shall  be  liable, 
at  the  discretion  of  the  court,  to  be  imprisoned  for  any  term  not  ex- 
ceeding two  years,  with  or  without  hard  labor." 

Doing  certain  acts  with  intent  to  obstruct  or  injure  engines  or 
carriages.  By  the  24  &  25  Vict.  c.  97,  s.  35,  "whosoever  shall  un- 
lawfully and  maliciously  put,  place,  cast,  or  throw  upon  or  across  any 
railway  any  wood,  stone,  or  other  matter  or  thing,  or  shall  unlawfully 
and  maliciously  take  up,  remove,  or  displace,  any  rail,  sleeper,  or 
other  matter  or  thing  belonging  to  any  railway,  or  shall  unlawfully 
and  maliciously  turn,  move,  or  divert  any  points  or  other  machinery 
belonging  to  any  railway,  or  shall  unlawfully  and  maliciously  make 
or  show,  hide  or  remove  any  signal  or  light  upon  or  near  to  any  rail- 
way, or  shall  unlawfully  and  maliciously  do  or  cause  to  be  done  any 
other  matter  or  thing,  with  intent,  in  any  of  the  cases  aforesaid,  to 
obstruct,  upset,  overthrow,  injure,  or  destroy  any  engine,  tender,  car- 
riage, or  truck,  using  such  railway,  shall  be  guilty  of  felony,  and 
being  convicted  thereof  shall  be  liable,  at  the  discretion  of  the  court, 
to  be  kept  in  penal  servitude  for  life  or  for  any  term  not  less  than  three 
[now  five]  years,  or  to  be  imprisoned  for  any  term  not  exceeding  two 
years,  with  or  without  hard  labor,  and,  if  a  male  under  the  age  of 
sixteen,  with  or  without  whipping." 

Obstructing  engines  or  carriages.  By  s.  36,  "  whosoever,  by  any 
unlawful  act,  or  by  any  wilful  omission  or  neglect,  shall  obstruct  or 
cause  to  be  obstructed  any  engine  or  carriage  using  any  railway,  or 
shall  aid  or  assist  therein,  shall  be  guilty  of  a  misdemeanor,  and  being 
convicted  thereof  shall  be  liable,  at  the  discretion  of  the  court,  to  be 
imprisoned  for  any  term  not  exceeding  two  years,  with  or  without 
hard  labor." 

Proof  of  intent.  A  party  designedly  placing  on  a  railway  sub- 
stances which  would  be  likely  to  produce  an  obstruction  of  the  car- 
riages, though  he  might  not  have  done  the  act  expressly  with  that  ob- 
ject, was  held  to  be  indictable  under  the  3  &  4  Vict.  c.  97,  s.  15, 
which  corresponds  to  the  24  &  25  Vict.  c.  100,  s.  33.  R.  v.  Holroyd, 
2  Moody  &  R.  339. 

The  prisoner  was  indicted  under  s.  7  of  the  14  &  15  Vict.  c.  19, 
which  is  similar  to  the  24  &  25  Vict,  c.  100,  s.  33,  for  wilfully  and 
maliciously  throwing  a  stone  into  a  railway  carriage,  with  intent  to 
endanger  the  safety  of  a  person  in  it.     It  appeared  that  there  had  been 


1114  RAILWAYS — OFFENCES   RELATING   TO. 

considerable  popular  excitement  against  a  person  who  was  about  to 
travel  by  the  train,  and  there  was  a  crowd  assembled  at  the  time  of 
his  departure,  and  that  the  prisoner  threw  a  stone  at  this  person 
whilst  he  was  in  the  carriage.  Erie,  J.,  after  consulting  AVilliams,  J., 
said,  "  looking  at  the  preamble  of  the  sections  of  this  statute  relat- 
ing to  this  class  of  offences,  which  recites  that  it  is  'expedient  to 
*«Qn  *make  further  provision  for  the  punishment  of  aggravated 
-^  assaults  ;'  and  looking  also  to  the  provision  of  these  clauses  as 
indicated  by  the  terms  of  the  6th  section  immediately  preceding  the 
section  upon  which  this  indictment  is  framed,  I  consider  that  the  intent 
to'endanger  the  safety  of  cwy  person  travelling  on  the  railway,  spoken 
of  in  both  sections,  must  appear  to  have  been  an  intent  to  inflict  some 
grievous  bodily  harm,  and  such  as  would  sustain  an  indictment  for 
assaulting  or  wounding  a  person  with  intent  to  do  some  grievous 
bodily  harm."  And  the  learned  judge  accordingly  took  the  opinion 
of  the  jury  whether  such  was  the  intent  of  the  prisoner.  R.  v.  Kooke, 
1  F.  &  F,  107.  Where  the  prisoner,  while  standing  on  a  bridge,  threw 
a  stone  over  the  parapet  wall,  which  fell  upon  the  tender  of  a  passing 
engine,  and  there  was  no  one  on  the  tender  at  the  time,  it  was  held 
that  the  prisoner  could  not  be  convicted  under  sect.  7  of  14  &  15  Vict. 
c.  19,  as  the  words  of  that  section  were  limited  to  the  case  of  anything 
thrown  upon  an  engine  or  carriage  containing  persons  therein.  R.  v. 
Court,  6  Cox,  C.  C.  202.  See,  however,  1  Russ.  on  Crimes  995  (n), 
6th  ed.,  note  by  Greaves. 

Proof  of  place  being  a  railway.  A  railway  intended  for  the  con- 
veyance of  passengers,  and  completely  constructed  and  used  for  con- 
veying workmen  and  materials,  but  not  open  to  the  public,  is  within 
the  provisions  of  the  3  &  4  Vict.  c.  97,  s.  15.  R.  v.  Bradford,  29 
L.  J.,  M.  C.  171.  See,  as  to  the  interpretation  of  the  word  "rail- 
way,"  s.  21  of  this  statute. 

Proof  of  obstruction.  The  defendant  altered  the  arms  of  a  signal 
and  the  color  of  two  distant  lights,  and  the  consequence  was  that  the 
driver  of  a  train  slackened  speed  and  nearly  brought  the  train  to  a 
stand-still,  causing  delay.  It  was  held  that  this  was  an  obstruction  of 
an  engine  within  section  36,  supra.  R.  v.  Hadfield,  L.  R.  1  C.  C.  R, 
253;  39  L.  J.,  M.  C.  131.  So  also  where  a  man  caused  a  train  to 
slacken  speed  by  holding  up  his  hands,  it  was  held  to  be  an  obstruc- 
tion.    R.  V.  Hardy,  L.  R.  1  C.  C.  R.  278. 

Distinction  between  felonies  and  misdemeanors  under  the  sec- 
tions. The  24  &  25  Vict.  c.  97,  s.  35,  and  the  24  &  25  Vict.  c.  100, 
s.  32,  make  it  a  felony  to  do  certain  acts  with  certain  intents.  Sect. 
36  of  the  former  and  s.  34  of  the  latter  make  the  same  acts  done 
without  intent  a  misdemeanor ;  and  it  has  been  held  that  an  acquittal 
for  a  felony  under  the  first  mentioned  sections  is  no  bar  to  a  trial 
under  the  latter  for  a  misdsmeanor.  R.  v.  Gilmore,  15  Cox,  C.  C.  85. 
See  the  case  ante,  p.  204. 


RAPE  AND   DEFILEMENT.  1115 


♦RAPE  AND  DEFILEMENT.  [*897 

PAGE 

Rape 897 

Procuring  defilement  of  a  girl  under  the  age  of  twenty -one  years  .  897 

Carnally  knowing  a  girl  under  twelve  years  of  age   ....  897 

between  the  ages  of  twelve  and  thirteen  897 

Indecent  assault 898 

Abduction 898 

Definition  of  carnal  knowledge 898 

Definition  of  rape 898 

Proof  with  regard  to  person  committing  the  offence  of  rape   ,        .  898 
on   whom  the   oflence  of  rape  is  com- 
mitted          899 

Proof  of  the  offence  of  rape  having  been  completed    ,        .        .        .  901 

Accessories 902 

Competency  and  credibility  of  the  witnesses      .....  902 

Defilement  of  children — proof  of  age        ....*.  903 

Nature  of  the  offence   ..........  904 

Assault  with  intent  to  ravish.  .        .        i        .        .        .         .  904 

Eape.  By  the  24  &  25  Vict.  c.  100,  s.  48,  "  whosoever  shall  be 
convicted  of  the  crime  of  rape  shall  be  guilty  of  felony,  and  being 
convicted  thereof  shall  be  liable,  at  the  discretion  of  the  court,  to  be 
kept  in  penal  servitude  for  life,  or  for  any  term  not  less  than  three 
[now  five]  years,  or  to  be  imprisoned  for  any  term  not  exceeding  two 
years,  with  or  without  hard  labor." 

Procuring  the  defilement  of  a  girl  under  the  age  of  twenty-one 
years.  By  s.  49,  "  whosoever  shall,  by  false  pretences,  false  repre- 
sentations, or  other  fraudulent  means,  procure  any  woman  or  girl  under 
the  age  of  twenty-one  years  to  have  illicit  carnal  connection  with  any 
man  shall  be  guilty  of  a  misdemeanor,  and  being  convicted  thereof 
shall  be  liable,  at  the  discretion  of  the  court,  to  be  imprisoned  for  any 
term  not  exceeding  two  years,  with  or  without  hard  labor." 

Carnally  knowing  a  girl  under  twelve  years  of  age.  By  the  24 
<fe  25  Vict.  c.  100,,  s.  50,  which  section  is  now  repealed,  carnally 
knowing  a  girl  under  the  age  of  ten  years  was  a  felony  ;  but  now,  by 
the  38  &  39  Vict,  c.  94,  s.  3,  "whosoever  shall  unlawfully  and  car- 
nally know  and  abuse  any  girl  under  the  age  of  twelve  years  shall  be 
guilty  of  felony,  and  being  convicted  thereof,  shall  be  liable,  at  the 
discretion  of  the  court,  to  be  kept  in  penal  servitude  for  life,  or  for 
any  term  not  less  than  fiv^e  years,  or  to  be  imprisoned  for  any  term 
not  exceeding  two  years,  with  or  without  hard  labor." 

Carnally  knowing  a  girl  between  the  ages  of  twelve  and  thir- 
teen. 'By  24  &  25  Vict.  c.  100,  s.  51,  which  section  is  now  repealed, 
carnally  *knowing  a  girl  between  the  ages  of  ten  and  twelve  r^oqo 
years  was  a  misdemeanor ;  but  now  by  the  38  &  39  Vict.  c.   L 


1116  RAPE  AND   DEFILEMENT. 

94,  s.  4,  "  whosoever  shall  unlawfully  and  carnally  know  and  abuse 
any  girl  being  above  the  age  of  twelve  years  and  under  the  age  of 
thirteen  years,  whether  with  or  without  her  consent,  shall  be  guilty  of 
a  misdemeanor,  and,  being  convicted  thereof,  shall  be  liable,  at  the 
discretion  of  the  court,  to  be  imprisoned  for  any  term  not  exceeding 
two  years,  with  or  without  hard  labor." 

This  section,  besides  altering  the  age  of  the  girl  to  thirteen  instead 
of  twelve,  expressly  renders  her  consent  innnaterial.  Under  the  old 
section  it  had  been  held  that  the  consent  of  the  girl  being  under  the 
age  of  twelve  was  immaterial,  see  post,  p.  904. 

Indecent  assault.  See  24  &  25  Vict.  c.  100,  s.  52,  supra,  p. 
303. 

Abduction.  See  24  &  25  Vict.  c.  100,  s.  53—56,  supra,  pp.  267, 
268. 

Definition  of  carnal  knowledge.  By  24  &  25  Vict.  c.  100,  s.  63, 
"  whenever,  upon  the  trial  of  any  offence  punishable  under  this  Act, 
it  may  be  necessary  to  prove  carnal  knowledge,  it  shall  not  be  neces- 
sary to  prove  the  actual  emission  of  seed  in  order  to  constitute  a  carnal 
knoM'ledge,  but  the  carnal  knowledge  shall  be  deemed  complete  upon 
proof  of  penetration  only.^ 

Definition  of  rape.  The  provision  as  to  rape  in  the  13  Edw.  1, 
st.  1,  c.  34,  is  as  follows  : — "  It  is  provided  that  if  a  man  from  hence- 
forth do  ravish  a  woman,  married,  maid,  or  other,  where  she  did  not 
consent,  neither  before  nor  after,  he  shall  have  judgment  of  life  and 
of  member."^  This  statute  is  repealed  by  the  now  repealed  statute 
9  Geo.  4,  c.  31,  s.  1,  but  it  is  held  notwithstanding  to  contain  the 
right  definition  of  rape,  except  so  far  as  the  subsequent  consent  is  con- 
cerned R.  V.  Fletcher,  Bell,  C.  C.  63 ;  28  L.  J.,  M.  C.  85.  And  in 
accordance  with  this  definition,  that  case  and  R.  v.  Camplin,  1  C.  &  K. 
149,  47  E.  C.  L.,  and  other  cases  were  decided.  See  these  cases  stated 
infra.  In  the  definitions,  therefore,  given  in  1  Hale,  P.  C  628  ;  3 
Inst.  60;  Hawk.  P.  C.  b.  1,  c.  41,  s.  2,  where  rape  is  said  to  be  the 
carnal  knowledge  of  a  woman  against  her  will,  the  words  "  against  her 
will  "  must  be  taken  to  mean  no  more  than  "  without  her  consent," 
if  the  above-mentioned  cases  are  to  be  taken  as  correct  law.  Some 
doubt,  however,  has  been  thrown  upon  them  by  the  case  of  R.  v. 
Fletcher,  L.  R.  1  C.  C.  R.  39  (and  see  the  report  of  this  case,  35  L. 
J.,  M.  C.  172).     See  this  case  stated  infra,  p.  900. 

1  See  Commonwealth  v.  Squires,  97  Mass.  59 ;  Noble  v.  State,  22  O.  St.  541  ;  Hilta- 
biddle  v.  State,  35  O.  St.  52 ;  State  v.  Harj^rave,  65  N.  C.  466  ;  Dawkins  v.  State,  58 
Ala.  378;  s.  c.  29  Am.  Rep.  754;  R.  v.  Holland,  16  L.  T.  N.  S.  536;  s.  c.  11  W.  R. 
757;  10  Cox,  Cr.  C.  478. 

*  Sex  need  not  be  averred  in  the  indictment.  The  injured  person  is  sufficiently 
indicated  by  the  name  "  Theresa  "  and  the  word  "  her."  Battle  v.  State,  4  Tex.  App. 
595. 


RAPE   AND   DEFILEMENT.  1117 

It  has  never  been  doubted  that  having  connection  with  a  cliild 
under  ten  years  is  a  rape,  whether  she  consent  or  not.  See 
the  passages  in  Hale,  Leach,  Coke,  and  Hawkins,  ah'eady  referred 
to.' 

Proof  with  regard  to  the  person  committing  the  oflfenee  of  rape. 
An  infant  under  the  age  of  fourteen  years  is  presumed  by  law  unable 
to  commit  a  rape,  but  he  may  be  a  principal  in  the  second  degree,  as 
aiding  and  assisting,  if  it  appear  by  the  circumstances  of  the  case  that 
he  had  a  mischievous  intent.^  1  Hale,  P.  C.  630.  R.  v.  Elderhaw, 
3  C.  &  P.  396,  14  E.  C.  L.;  R.  v.  Groombridge,  7  C.  &  P.  582,  32 
E.  C.  L.  Where  a  lad  under  fourteen  was  charged  with  an  assault  to 
commit  a  rape,  Patteson,  J.,  said,  '*!  think  that  the  prisoner  could 
not  in  point  of  law  be  guilty  of  the  offence  of  assault  with  intent 
to  commit  a  rape,  *if  he  was  at  the  time  of  the  offence  under  r^onq 
the  age  of  fourteen.  And  I  think  also  that  if  he  was  under  ■- 
that  age,  no  evidence  is  admissible  to  show  that  in  point  of  fact  he 
could  commit  the  offence  of  rape."  R.  v.  Phillips,  8  C.  &  P.  736, 
34  E.  C.  L.  See  also  R.  v.  Jordan,  9  C.  &  P.  118,  38  E.  C.  L., 
where  Williams,  J.,  held  that  a  boy  under  fourteen  years  of  age 
could  not  be  convicted  of  carnally  knowing  and  abusing  a  girl 
under  ten  years  old,  although  it  was  proved  that  he  had  arrived  at 
puberty. 

Although  a  husband  cannot  be  guilty  of  a  rape  upon  his  own  wife, 
he  may  be  guilty  as  a  principal  in  assisting  another  person  to  commit 
a  rape  upon  her.  R.  v.  Lord  Audley,  1  St.  Tr.  387, /o.  ed.;  1  Hale, 
P.  C.  629.  The  wife  in  this  case  is  a  competent  witness  against  her 
husband.     Id. 

Where  a  prisoner  was  convicted  of  a  rape  on  an  indictment,  which 
charged  that  he  "  in  and  upon  E.  F.,  etc.,  violently  and  feloniously 
did  made  "  (omitting  the  words  "  an  assault ")  "  and  her  the  said 
E.  F.,  then  and  there  against  her  will  violently  and  feloniously  did 
ravish  and  carnally  know  against  the  form  of  the  statute,  etc. ;"  it 
was  held,  by  ten  of  the  judges,  that  the  omission  of  these  words  was 
no  ground  for  arresting  the  judgment.  R.  v.  Allen,  9  C.  &  P.  521, 
38  E.  C.  L. 

Proof  with  regard  to  the  person  upon  whom  the  offence  is  com- 
mitted. It  must  appear  that  the  offence  was  committed  without  the 
consent  of  the  woman  ;  but  it  is  no  excuse  that  she  yielded  at  last  to 
the  violence,  if  her  consent  was  forced  from  her  by  fear  of  death  or 
by  duress.     Nor  is  it  any  excuse,  that  she  consented  after  the  fact,  or 

^  In  case  of  female  child  less  than  ten  years  of  age.  O'Meara  v.  State,  17  O.  St. 
515  ;  Moore  v.  State,  Id.  521 ;  Stephen  v.  State,  11  Ga.  225.  S.  That  the  female  is 
under  ten  years  of  age  may  be  shown  at  the  trial,  though  the  indictment  contain  no 
such  allegation.     McMath  y.  State,  55  Ga.  303. 

*  People  V.  Randolph,  2  Parker's  C  R.  174;  Commonwealth  v.  Scannel,  11  Cush. 
547.  An  infant  under  the  age  of  fourteen,  cannot  commit  the  crime  of  rape,  or  be 
guilty  of  an  assault  with  intent  to  commit  rape.    State  v.  Sam,  1  Winst.  300.    S, 


1118  EAPE   AND   DEFILEMENT. 

that  she  was  a  common  strumpet;^  for  she  is  still  under  the  pro- 
tection of  the  law  and  may  not  be  forced  ;  or  that  slie  was  first  taken 
with  her  own  consent,  if  she  was  afterwards  forced  against  her  will  ; 
or  that  she  was  a  concubine  to  the  ravisher,  for  a  woman  may  forsake 
her  unlawful  course  of  life,  and  the  law  will  not  presume  her  inca- 
pable of  amendment.^  All  these  circumstances,  however,  are  mate- 
rial, to  be  left  to  the  jury  in  favor  of  the  accused,  more  especially  in 
doubtful  cases,  and  where  the  woman's  testimony  is  not  corrol)orated 
by  other  evidence.  1  East,  P.  C.  444  ;  1  Hale,  628,  631  ;  Hawk. 
P.  C.  b.  1,  c.  41,  s.  2  ;  li.  V.  Fletcher,  Bell,  C.  C.  63  ;  28  L.  J., 
M.  C.  85. 

The  opinion  that,  where  the  woman  conceived,  it  could  not  be  rape, 
because  she  must  have  consented,  is  now  completely  exploded.  1  East, 
P.  C.  445 ;  1  Russ.  Cri.  860,  5th  ed.^ 

Whether  carnal  knowledge  of  a  woman,  who,  at  the  time  of  the 
commission  of  the  oifence,  supposed  a  man  to  be  her  husband,  is  a 
rape,  came  in  question  in  the  following  case.  The  prisoner  was  in- 
dicted for  a  burglary,  with  intent  to  commit  a  rape.  It  appeared 
that  the  prisoner  got  into  the  woman's  bed  as  if  he  had  been  her 
husband,  and  was  in  the  act  of  copulation,  when  she  made  the  dis- 
covery ;  upon  which,  and  before  completion,  he  desisted.  The  jury 
found  that  he  had  entered  the  house  with  intent  to  pass  for  her 
husband,  and  to  have  connection  with  her,  but  not  with  the  intention 
of  forcing  her,  if  she  made  the  discovery.  The  prisoner  being  con- 
victed, upon  a  case  reserved,  four  of  the  judges  thought  that  the 
having  carnal  knowledge  of  a  woman,  while  she  was  under  the  belief 
of  the  man  being  her  husband,  would  be  a  rape  ;  but  the  other  eight 
judges  thought  that  it  would  not :  several  of  the  eight  judges  inti- 
mated that  if  the  case  should  occur  again,  they  would  advise  the  jury 
*Qnm  *^^  ^"^  ^  special  verdict.  R.  v.  Jackson,  Russ.  &  Ry.  487, 
-I  The  point  was  again  reserved,  in  R.  v.  Clarke,  1  Dears.  8  P.  C. 
C.  R.  397 ;  24  L.  J.,  M.  C.  25,  where  the  Court  of  Criminal  Appeal 
upheld  the  decision  come  to  in  R.  v.  Jackson,  and  decided  that  under 
the  circumstances  the  prisoner  was  not  guilty  of  rape.  See  also  R.  v, 
Stanton,  1  C.  &  K.  415,  47  E.  C.  L.,  and  R.  v.  Barrow,  L.  R.  1  C.  C. 
R.  156  ;  38  L.  J.,  M.  C.  20,  where  it  did  not  appear  that  the  woman 
was  unconscious  or  asleep,  though  there  was  consent  obtained  by  fraud. 

'  Eichie  v.  State,  58  Ind.  355.  Proof  of  any  consent  on  the  part  of  the  complain- 
ant, however  reluctant,  will  rebut  the  presumption  of  rape.  State  v.  Burgdorf,  53 
Mo.  65.  As  to  cross-examination  of  the  prosecutrix  on  her  account  of  the  rape  made 
shortly  after  with  a  view  to  show  that  she  consented.  Rogers  v.  People,  34  Mich. 
845.  The  resistance  of  the  woman  must  be  to  her  utmost  ability.  Mathews  v.  State, 
19  Neb.  330. 

*  As  to  the  evidence  necessary  to  sustain  an  indictment  for  fornication  and  illicit 
intercourse:  Pollock  t;.  Pollock,  71  N.  Y.  137  ;  State  v.  Waller,  80  N.  C.  401.  On 
Indiana  statute:  State  r.  Stephens,  63  Ind.  542;  Zorger  v.  Greensburgh,  60  Ind.  1. 
Definition  of  offence  in  Texas:  Wolffr.  State,  6  Tex.  App.  195.  In  Alabama  there 
can  be  no  marriage  between  black  and  white.  Hoover  v.  State,  59  Ala.  57  ;  Green  v. 
State,  Id.  68.  In  an  indictment  for  incest,  cohabit  does  not  necessarily  mean  as  man 
and  wife.     State  v.  Lawrence,  19  Neb.  307. 

»  United  States  v.  Dickinson,  Hemp.  C.  C.  (U.  S.)  1. 


RAPE   AND   DEFILEMENT.  1119 

But  it  would  be  otherwise  if  the  jury  found  that  the  woman  was  asleep ; 
and  where  a  man  intended  to  have  connection  with  a  woman  while  she 
was  asleep,  and  attempted  to  do  so,  it  was  ruled  that  he  might  be  con- 
victed of  the  attempt.'  Per  Lush,  J.,  R.  v.  Myers,  12  Cox,  C.  C.  311. 
The  case  of  R.  v.  Barrow,  supra,  was  questioned  in  R.  v.  Flattery,  2 
Q,.  B,  D.  410,  46  L.  J.,  M.  C.  130,  where  the  prisoner,  under  pretence 
of  performing  a  surgical  operation  on  the  prosecutrix,  had  connection 
with  her,  she  submitting  to  his  treatment,  believing,  as  she  swore, 
that  he  was  treating  her  medically.  The  court  on  these  facts  held 
the  prisoner  to  have  been  rightly  convicted  of  rape.  Speaking  of  the 
case  of  R.  v.  Barrow,  supra,  Mellor,  J.,  said,  "  I  am  shocked  to  find 
the  facts  of  that  case  were  held  to  show  consent,"  the  other  judges 
expressing  their  concurrence  in  this  expression  of  opinion.  And 
where  in  a  similar  case  the  woman  resisted  the  moment  she  discov- 
ered that  the  man  (the  prisoner)  having  connection  with  her  was 
not  her  husband,  and  the  jury  in  answer  to  questions  left  to  them  by 
the  judge  found  that  she  at  no  time  consented,  that  it  was  against  her 
will  and  that  her  conduct  did  not  lead  the  prisoner  to  the  belief  that 
she  did  consent,  it  was  held  that  he  was  rightly  convicted  of  rape. 
R.  V.  Young,  14  Cox,  C.  C.  R.  114. 

In  R.  V.  Camplin,  1  C.  &  K.  746,  47  E.  C.  L.;  1  Den.  C.  C.  89,  it 
was  proved  that  the  prisoner  made  the  prosecutrix  quite  drunk,  and 
that  when  she  was  in  a  state  of  insensibility,  the  prisoner  took  advan- 
tage of  it,  and  had  connection  with  her.  The  jury  found  the  prisoner 
guilty,  but  said  that  the  prisoner  gave  the  prosecutrix  the  liquor  for  the 
purpose  of  exciting  her,  and  not  with  the  intention  of  rendering  her 
insensible,  and  then  having  connection  with  her.  It  was  held  that 
the  prisoner  was  properly  convicted  of  rape.  This  decision  was  ap- 
proved of  in  R.  V.  Fletcher,  Bell,  Cr.  C.  63 ;  28  L.  J.,  M.  C.  85. 
There  the  prisoner  had  carnal  knowledge  of  a  girl  thirteen  years  of 
age,  who,  from  defect  of  understanding,  M^as  incapable  of  giving  con- 
sent, or  of  exercising  any  judgment  in  the  matter,  and  the  prisoner  was 
held  to  be  guilty  of  rape. 

The  attention  of  the  court  was  called  to  this  last  case  in  that  of  R. 

^  In  rape,  force  need  not  be  such  as  to  create  a  reasonable  apprehension  of  death. 
Waller  v.  State,  40  Ala.  325.  Fraud  where  no  force  is  intended  does  not  make  rape. 
Walter  v.  People,  50  Barb.  144.  Having  sexual  connection  forcibly  with  a  woman 
intoxicated  to  the  point  of  insensibility,  is  not  a  rape.  People  v.  Quin,  50  Barb.  128 ; 
[but  see]  Commonwealth  v.  Burke,  105  Mass.  376.  Sexual  intercourse  with  a  woman 
in  a  state  of  dementia,  not  idiotic,  but  approaching  towards  it,  no  circumstance  of 
force  or  fraud  shown  :  held  not  to  be  rape.  People  v.  Crosswell,  13  Mich.  427.  [Bald- 
win V.  State,  15  Tex.  App.  275.]  It  seems  that  it  is  as  much  a  rape  when  effected  thus 
by  stratagem  as  by  force.  People  v.  Barton,  1  Wheel.  C.  C.  378.  381,  n. ;  [but  see] 
Commonwealth  i'.  Fields,  4  Leigh,  648  [Cartes  v.  State,  35  Ga.  263].  If  a  man 
accomplishes  his  purpose  by  fraud  or  by  surprise,  without  intending  to  use  force,  it  is 
not  rape.  Pleasant  v.  State,  8  Eng.  360 ;  Wyatt  ?•.  State,  2  Swan,  394 ;  Lewis  v.  State, 
80  Ala.  54 ;  Pollard  v.  State,  2  Clarke,  567  [Thompson  v.  State,  43  Tex.  583].  The 
inference  arising  against  the  truth  of  a  charge  of  rape  from  a  long  silence  on  the  part 
of  the  female,  is  not  a  presumption  amounting  to  a  rule  of  law,  but  is  a  matter  of  fact 
to  be  passed  on  by  the  jury.  State  v.  Peter,  8  Jones's  (Law),  19.  [Declarations  ofi 
the  prosecutrix  that  the  accused  was  not  guilty  and  that  the  prosecution  was  an  attempt 
to  extort  money  from  him  are  admissible  for  the  defence.  Sherwin  v.  People,  69  111. 
55.]     As  to  outcry  in  rape,  see  Keynolds  v.  People,  41  How.  Pr.  179.    S. 


1120  RAPE  AND   DEFILEMENT. 

V.  Charles  Fletcher,  L.  R.  1  C.  C.  R.  39.  In  this  case  the  prosecu- 
trix was  an  idiot  girl  with  one  side  and  a  foot  paralyzed.  The 
prisoner  admitted  the  tact  of  having  had  connection  with  her, 
alleging  consent,  and  tliat  he  had  had  connection  with  her  before, 
also  with  her  consent.  The  evidence,  if  it  showed  anything,  Ment 
ratiier  to  confirm  the  prisoner's  account.  The  medical  evidence 
was  to  the  effect  that  strong  animal  instinct  might  exist,  notwith- 
standing the  imbecile  conditi(m  of  the  girl.  It  was  left  to  the 
jury,  in  the  terms  used  by  Willes,  J.,  in  R.  v.  Fletcher,  supra,  that  if 
they  were  satisfied  that  the  girl  was  incapable  of  expressing  con- 
sent or  dissent,  and  that  the  prisoner  had  connection  with  her  with- 
out her  consent,  they  should  find  him  guilty,  but  that  a  consent  pro- 
duced by  mere  animal  instinct  would  be  sufficient  to  prevent  the  act  from 
*9011  *<^<^ii'^*i^"ti"g  ^  ^^P6.  The  jury  found  the  prisoner  guilty,  and 
-J  the  court  were  unanimously  of  opinion  that  some  evidence  that 
what  was  done  to  the  girl  was  against  her  will  or  without  her  consent, 
ought  to  have  been  given,  and  that  in  the  absence  of  such  evidence 
there  was  no  case  to  go  to  the  jury.  See  also  the  report  of  this  case, 
35  L.  J.,  M.  C  172.  The  two  cases  of  R.  r.  Fletcher,  supra,  were 
further  considered  in  the  case  of  R.  v.  Barrett,  L.  R.  2  C.  C. 
81 ;  43  L.  J.,  M.  C.  7.  There  the  prisoner  was  found  guilty  of  an 
attempt  at  rape  on  an  idiot  girl  of  fourteen  and  a  half  years  old,  who 
ever  since  six  years  old  had  been  blind  and  wrong  in  her  mind,  and, 
as  in  the  first  case  of  R.  v.  Fletcher,  was  inca})able  of  givirtg  consent. 
The  court,  in  affirming  the  conviction,  stated  that  the  rule  laid  doAvn 
in  the  first  case  of  R.  v.  Fletcher  was  right,  and  that  it  is  sufficient  but 
essential  to  show  that  there  was  an  absence  of  consent,  and  that  it  was 
not  intended  in  the  second  case  of  R.  v.  Fletcher  to  depart  from  this 
rule,  but  that  in  the  second  case  there  was  no  sufficient  evidence  of 
absence  of  consent. 

It  is  submitted  that  the  true  rule  must  be,  that  where  the  man  is 
led  from  the  conduct  of  the  woman  to  believe  that  he  is  not  com- 
mitting a  crime  known  to  the  law,  the  act  of  connection  cannot  under 
such  circumstances  amount  to  a  rape.  In  order  to  constitute  rape 
there  must,  it  would  appear,  be  an  intent  to  have  connection  with  the 
woman  notwithstanding  her  resistance.  In  a  case  of-  R.  v.  Urry, 
tried  at  Lincoln  Spring  Assizes,  1873,  the  above  passage  wrs  approved 
of  by  Denman,  J.  And  see  the  remarks  of  that  learned  judge  and  of 
Field,  J.,  in  R.  v.  Flattery,  suptra,  and  R.  v.  Young,  ^upra.  See  also 
R.  V.  Thurburn,  ante,  p.  676,  where  Parke,  B.,  said  that  the  guilt  of  the 
accused  must  depend  ujxtn  the  circumstances  as  they  appear  to  him. 

See  further,  as  to  the  difference  between  consent  and  submission, 
and  consent  obtained  by  fraud,  supra,  p.  306. 

Proof  of  the  offence  of  rape  having  been  completed.  Upon  the 
two  cases  reserved,  R.  v.  Reekspear,  1  Moo.  C.  C.  342,  and  R.  v.  Cox, 
Id.  337  ;  5  C.  &  P.  297,  24  E.  C.  L.,  it  was  held  by  the  judges  that 
proof  of  penetration  is  sufficient,*  notwithstanding  emission  be  nega- 

'  Penetration  should  be  proved  beyond  a  reasonable  doubt,  and  the' jury  should  be 


RAPE  AND   DEFILEMENT.  1121 

tived ;  and  in  a  more  recent  case,  in  which  it  was  suggested  by  the 
counsel  for  the  defence  that  R.  v.  Cox  was  not  argued  before  the 
judges  by  counsel,  and  that  doubts  of  the  propriety  of  the  decision 
were  said  to  be  entertained  by  the  two  judges  not  present ;  Pat- 
teson,  J.,  said,  ''  It    is  true  that  the  case  was  not  argued,  but  still 

1  cannot  act  against  their  decision."  The  learned  judge  afterwards 
said,  that  if  it  should  prove  necessary,  the  case  should  be  further 
considered.     The    prisoner,    however,  was  acquitted.     R.  v.  Brook, 

2  Lew.  C.  C.  267.  But  see  now  24  &  25  Vict.  c.  100,  s.  63, 
supra,  p.  898. 

It  has  been  made  a  question,  upon  trials  for  this  offence,  how  far 
the  circumstance  of  the  hymen  not  being  injured  is  proof  that  there 
has  been  no  penetration.  In  one  case,  where  it  was  proved  not  to 
have  been  broken,  Ashurst,  J.,  left  it  to  the  jury  to  say  whether 
penetration  was  proved ;  for  that  if  there  were  any,  however  small, 
the  rape  was  complete  in  law.  The  prisoner  being  convicted,  the 
judges  held  the  conviction  right.  They  said  that,  in  such  cases,  the 
least  degree  of  penetration  was  sufficient,  though  it  might  not  be 
attended  with  the  deprivation  of  the  marks  of  virginity.  R.  v.  Russen, 
1  East,  P.  C  438.  But  in  a  late  case,  Gurney,  B.,  said,  "  I  think 
that  if  the  hymen  is  not  ruptured,  there  is  not  a  sufficient  *pen-  p  *qr\n 
etration  to  constitute  the  offence.  I  know  that  there  have  been  L 
cases  in  which  a  less  degree  of  penetration  has  been  held  to  be  suffi- 
cient ;  but  I  have  alwavs  doubted  the  authority  of  those  cases."  R.  v. 
Gammon,  5  C.  &  P.  321,  24  E.  C.  L.  So  in  Beck's  Medical  Juris- 
prudence, p.  53,  it  is  said  that  it  would  be  difficult  to  support  an  accu- 
sation of  rape  where  the  hymen  is  found  entire.^  In  a  late  case,  where 
the  prisoner  was  indicted  for  carnally  knowing  a  child  under  ten  years 
of  age,  the  surgeon  stated  that  her  private  parts  internally  were  very 
much  inflamed,  so  much  so  that  he  was  not  able  to  ascertain  whether 
the  hymen  had  been  ruptured  or  not.  Bosanquet,  J.  (Coleridge 
and  Coltman,  JJ.,  being  present),  said,  "  It  is  not  necessary,  in 
order  to  complete  the  offence,  that  the  hymen  should  be  ruptured, 
provided  that  it  Avas  clearly  proved  that  there  was  penetration ; 
but  where  that  which  is  so  very  near  to  the  entrance  has  not  been 
ruptured,  it  is  very  difficult  to  come  to  the  conclusion  that  there 
has  been  penetration  so  as  to  sustain  a  charge  of  rape."  The  pris- 
oner was  found  guilty  of  an  assault.  R.  v.  M'Rue,  8  C.  &  P.  641, 
34  E.  C.  L.  But  in  the  case  of  R.  v.  Hughes,  2  Moo.  C.  C.  190, 
it  was  held,  on  a  case  reserved,  that  penetration,  short  of  rujitur- 
ing  the  hymen,  is  sufficient  to  constitute  the  crime  of  rape.  So  in 
the  case  of  R.  v.  Lines,  1  C.  &  K.  393,  47  E.  C.  L.,  Parke,  B., 
told   the  jury  that    if  any  part  of  the  membrum  virile  was  within 

so  instructed.  Davis  v.  State,  43  Tex.  189.  The  least  penetration  constitutes  the 
crime  of  rape.  State  v.  Hargrave,  65  N.  C.  466 ;  State  v.  Shields,  45  Conn.  256 ;  and 
see  Commonwealth  v.  Parr,  5  W.  &  S.  (Pa.)  345  ;  Comstock  v.  State,  14  Neb.  205.  On 
what  evidence  of  penetration  is  sufficient,  see  People  v.  Crowley,  4'  N.  Y.  Crim. 
Rep.  26. 

^  State  V,  Le  Blanc,  1  Const.  Eep.  354 ;  Pennsylvania  v.  Sullivan,  Addison,  143,    S. 

71 


1020  NAVAL,   MILITARY,   AND   OTHER  STORES. 

bv  tlio  act.  If  the  defendant's  husband  really  bought  the  linen  at  a 
public  sale,  but  neglected  to  take  a  certificate,  or  did  not  preserve  it,, 
it  would  be  contrary  to  natnral  justice  after  this  length  of  time 
punish  her  for  his  neglect.  He  therefore  thought  the  evidence  giveni 
by  the  defendant  proper  to  be  left  to  the  jury,  and  directed  them  that^ 
if  upon  the  whole  of  the  evidence  they  thought  the  defendant  came 
into  tiie  possession  of  them  without  any  fraud  or  misbehavior  on  her 
part,  they  should  acquit  her.  Anon.,  Frost.  App.  439.  The  decision 
was  followed  by  Lord  Kenyon  in  R.  v.  Banks,  1  Esp.  144,  where  the 
prisoner  was  indicted  for  having  marked  naval  stores  in  his  posses- 
sion ;  where  that  learned  judge  said,  that  it  was  clear  that  in  prosecu- 
tions under  this  statute  it  was  sufficient  for  the  crown  to  prove  the 
finding  of  the  stores  with  the  king's  mark  in  the  defendant's  posses- 
sion, to  call  upon  him  to  account  for  that  possession,  and  the  manner 
of  his  *coming  by  them ;  so  that  of  course  the  onus  lay  upon 


* 


814] 


the  defendant.     But  that  it  could  not  bear  a  question,  but  that 


the  defendant  had  other  means  of  showing  that  he  had  lawfully  be- 
come possessed  of  them  than  by  the  production  of  the  certificate  from 
the  navy  board.  These  decisions  were  referred  to  and  approved  by 
Coltman,  J.,  in  R.  v.  Willmett,  3  Cox,  C.  C.  281,  and  by  Watson,  B., 
and  Hill,  J.,  in  R.  v.  Cohen,  8  Cox,  C.  C.  41. 

The  goods  will  be  construed  to  be  in  the  custody  and  possession  of 
the  prisoner,  though  they  may  never  have  been  in  his  actual  posses- 
sion, or  on  his  premises,  if  they  have  been  under  his  control,  and  dis- 
posed of  by  him  ;  as  where  goods  were  received  at  a  railway  station, 
and  while  they  were  there  the  prisoner  made  inquiries  about  them,  and 
directed  how  and  to  whom  they  were  to  be  delivered ;  this  was  held 
by  the  court  of  criminal  appeal  to  be  sufficient  evidence  to  support  a 
conviction.  R.  v.  Sunley,  1  Bell,  C.  C.  145.  But  see  now  supra, 
38  &  39  Vict.  c.  25,  s.  10. 

Upon  an  indictment  under  the  9  &  10  Will.  3,  c.  41,  s.  2,  [now 
repealed]  charging  the  defendant  with  having  been  found  in  possession 
of  naval  stores  marked  with  a  broad  arrow,  it  was  proved  that  the 
defendant  was  an  ironmonger,  and  delivered  to  the  captain  of  a  vessel 
a  cask  of  copper  bolts,  some  of  which  were  marked  with  the  broad 
arrow.  Before  the  vessel  sailed  the  police  seized  tJie  cask  and  found 
it  to  contain  150  copper  bolts.  The  jury,  in  answer  to  questions  put 
to  them,  found  that  the  prisoner  was  in  possession  of  bolts  marked 
with  the  broad  arrow,  but  that  they  (the  jury)  had  not  sufficient  evi^- 
dence  before  them  to  show  that  the  prisoner  knew  they  were  so  marked. 
But  they  also  found  that  the  prisoner  had  reasonable  means  of  know- 
ing that  the  bolts  were  so  marked.  The  court  of  criminal  appeal  held 
that  on  these  findings  the  prisoner  was  entitled  to  be  acquitted.  R.  v. 
Sleep,  L.  &  C.  C.  C.  44 ;  30  L.  J.,  M.  C.  170.  And  see  also  R.  v, 
O'Brien,  15  L.  T.,  N.  S.  419. 

As  to  embezzlement  of  stores  belonging  to  Chelsea  Hospital,  see  7 
Geo.  4,  c.  16 ;  as  to  stores  belonging  to  Greenwich  Hospital,  see  28  & 
29  Vict.  c.  89.  Section  45  of  that  act  is  to  be  read  as  though  section 
17  of  38  &  39  Vict.  c.  25,  was  referred  to  in  that  section,  instead  of 
the  Naval  and  Victualling  Stores  Act,  1864. 


NUISAJ^CE.  1021 


*NUISANCE.  [*815 


Proof  of  the  public  nature  of  the  nuisance 815 

of  the  degree  of  annoyance  which  constitutes  a  public  nuisance  816 

with  regard  to  situation gl6 

with  regard  to  length  of  time         , 817 

Proof  of  particular  nuisances '818 

To  liigliways gl8 

Particular  trades 818 

Corrupting  the  waters  of  public  rivers      ....  819 

Railways  and  steam  engines 819 

Acts  tending  to  produce  public  disorders,  and  acts  of  public 

indecency 819 

Disorderly  inns •        ,  821 

Gaming-houses        .....,,..  821 

Bawdy-houses •        .        .        .  823 

As  to  what  amounts  to  a  keeping  .....  823 

Play-houses,  etc. 823 

Dangerous  animals 824 

Contagion  and  unwholesome  provisions    ....  824 

Eaves-dropping — common  scold 824 

Proof  of  the  liability  of  the  defendant       ....  825 

Punishment  and  abatement  of  the  nuisance  ....  826 


A  PUBLIC  or  common  nuisance  is  such  an  inconvenient  or  trouble- 
some offence  as  annoys  the  whole  community  in  general,  and  not 
merely  some  particular  person  ;  and  therefore  this  is  indictable.^  4 
Bl.  Com.  167.  It  may  be  both  indictable  and  actionable.  Rose  v. 
Graves,  5  M.  &  Gr.  613,  44  E.  C.  L.;  Fritz  v.  Hobson,  14  Ch.  D. 
542 ;  49  L.  J.  Ch.  321. 

Proof  of  the  public  nature  of  the  nuisance.  The  existence  of  the 
matter  as  a  public  nuisance  depends  upon  the  number  of  persons 
annoyed,  and  is  a  fact  to  be  judged  of  by  a  jury.  R.  v.  White, 
1  Burr.  337.  Thus  where  a  tinman  was  indicted  for  the  noise  made 
by  him  in  carrying  on  his  trade,  and  it  appeared  that  it  only  affected 
the  inhabitants  of  three  sets  of  chambers  in  Clifford's  Inn,  and  that 
the  noise  might  be  partly  excluded  by  shutting  the  windows ;  Lord 
Ellenborough  ruled  that  the  indictment  could  not  be  maintained, 
as  the  annoyance,  if  anything,  was  a  private  nuisance.  R.  v.  Lloyd, 
4  Esp.  200.  But  a  nuisance  near  the  highway,  whereby  the  air 
thereabouts  is  corrupted,  is  a  public  nuisance.  R.  t>.  Pappineau,  2 
Str.  686. 

^  The  careless  or  negligent  keeping  of  gunpowder  in  large  quantities  near  dwelling- 
houses,  or  where  the  lives  of  persons  are  tlierebv  endangered,  is  a  nuisance  at  common 
law.  Bradle  v.  People,  56  Barb.  72.  Spring  guns,  altliough  justifiably  placed  to  pro- 
tect life  or  property,  may  constitute  a  nuisance,  if  they  cause  actual  danger  to  passers- 
by  in  the  street,  and  if  this  annoyance  to  the  public  is  shown  to  be  of  a  real  and  sub- 
stantial nature.  State  v.  Moore,  31  Conn.  479.  The  ofi'ence  of  riding  or  going  armed 
with  unusual  and  dangerous  weapons,  to  the  terror  of  the  people,  is  an  ollence  at  com- 
mon law.    State  v.  Huntley,  3  Ired.  418.    S. 


1122  RAPE   AND   DEFILEMENT. 

the  lahia  of  the  pudendum,  no  matter  how  little,  this  was  sufficient 
to  constitute  a  penetration,  and  the  jury  ougiit  to  convict  tlie  pris- 
oner. 

If  the  evidence  be  insufficient  to  support  the  charge  of  rape,  but 
sufficient  to  establish  the  offence  of  attempting  to  commit  a  rape, 
the  prisoner  may  be  found  guilty  thereof.  See  14  &  15  Vict.  c. 
100,  s.  9,  ari<c, 'p.  312. 

Accessories.  An  indictment,  charging  the  prisoner  both  as  prin- 
cipal in  the  first  degree,  and  as  aiding  and  abetting  other  men  in 
connnitting  a  rape,  was  held,  after  conviction,  to  be  valid,  \\\)ox\  the 
count  charging  the  prisoner  as  principal.  Upon  such  an  indictment, 
it  was  held  that  evidence  might  be  given  of  several  rapes  on  the 
same  woman,  at  the  same  time,  by  the  prisoner  and  other  men  each 
assisting  the  other  in  turn,  without  putting  the  prosecutor  to  elect  on 
which  count  to  proceed.  K.  v.  Folkes,  1  Moo.  C.  C.  354.  So  a  count 
charging  A.  with  rape  as  a  principal  in  the  first  degree,  and  B.  as 
principal  in  the  second  degree,  may  be  joined  with  another  count 
charging  B.  as  a  principal  in  the  first  degree,  and  A.  as  principal  in  the 
second  degree.     R.  v.  Gray,  7  C.  &  P.  164. 

Competency  and  credibility  of  the  witnesses.  The  party  ravished, 
says  Lord  Hale,  may  give  evidence  upon  oath,  and  is  in  law  a  com- 
petent witness  ;  but  the  credibility  of  her  testimony,  and  how  far  she 
is  to  be  believed,  must  be  left  to  the  jury,  and  is  more  or  less  credible, 
according  to  the  circumstances  of  fact  that  concur  in  that  testimony.^ 
For  instance,  if  the  witness  be  of  good  fame,  if  she  presently  discover 
the  offence,  and  make  pursuit  after  the  offender,  showed  circumstances 
and  signs  of  the  injury  (whereof  many  are  of  that  nature  that  women 
only  are  the  most  proper  examiners  and  inspectors)  ;  if  the  place  in 
which  the  fact  was  done  was  remote  from  people,  inhabitants,  or  pas- 
sengers ;  if  the  offender  fled  for  it ;  these  and  the  like  are  concurring 
evidences  to  give  greater  probability  to  her  testimony  when  proved 
by  others  as  well  as  herself.  1  Hale,  633 ;  1  East,  P.  C.  448.  On 
♦QrPT  *^^^^  other  hand,  if  she  concealed  the  injury  for  any  considera- 
'^-'  ble  time  after  she  had  an  opportunity  to  complain  ;  if  the  place, 
where  the  fact  was  supposed  to  have  been  committed,  was  near  to  in- 
habitants, or  the  common  recourse  or  passage  of  passengers,  and  she 
made  no  outcry  when  the  fact  was  supposed  to  be  done,  where  it  was 
probable  she  might  have  been  heard  by  others  ;  such  circumstances 

^  A  defendant  indicted  for  rape  may  be  convicted  on  the  uncorroborated  testimony 
of  the  prosecutrix,  although  she  is  of  ill -fame  for  chastity.  Boddie  v.  State,  52  Ala. 
395.  People  v.  Mayes,  66  Cal.  597.  Contra,  Matthews  r.  State,  19  Neb.  330.  It  is 
not  a  leading  question  to  ask  the  prosecutrix,  was  the  act  done  with  or  without  your 
consent?  Coates  v.  State,  2  Tex.  App.  16.  Evidence  that  bruises  were  found  upon  the 
person  of  the  prosecuting  witness  two  or  three  weeks  after  the  oflence  was  alleged  to 
have  been  committed  is  admissible.  It  is  for  the  jury  to  determine  if  it  corroborates 
the  prosecutrix  sufficiently  to  warrant  a  conviction.  State  v.  McLaughlin,  44  la.  82. 
Where  the  story  of  the  prosecutrix  is  improbable,  and  uncorroborated,  a  conviction 
may  be  set  aside  by  the  appellate  court.    People  v.  Ardaga,  51  Cal.  371. 


RAPE  AND   DEFILEMENT.  1123 

carry  a  strong  presumption  that  her  testimony  is  false.*  Id.  The  fact 
that  the  prosecutrix  made  a  complaint  soon  after  the  transaction  is  ad- 
missible, but  the  particulars  of  her  complaint  cannot  be  given  in  evi- 
dence ;  see  ante,  p.  2(3.^  Siie  may  be  asked  whether  she  named  a  person 
as  having  committed  the  offence,  but  not  whose  name  she  mentioned. 
Per  Cresswell,  J.,  R.  v.  Osborne,  Car.  &  M.  622,  41  E.  C.  L.  But 
though  the  particulars  of  what  she  said  cannot  be  asked  in  chief 
of  the  confirming  witness,  they  may  in  cross-examination.  R.  v. 
Walker,  2  Moo.  &  R.  212. 

A  strict  caution  is  given  by  Lord  Hale,  with  regard  to  the  evidence 
for  the  prosecution  in  cases  of  rape  :  "  An  accusation  easily  to  be  made, 
and  hard  to  be  proved,  and  harder  to  be  defended  by  the  party  accused, 
though  never  so  innoceut."     1  Hale,  635. 

As  a  general  rule,  the  only  point  in  which  a  witness's  character  can 
be  impeached  is  his  credibility.  But  until  recently  it  was  thought 
that  there  is,  in  cases  of  rape,  an  exception  to  this  rule,  which  permits 
the  character  of  the  woman  who  brings  a  charge  of  rape  to  be  im- 
peached in  respect  of  her  chastity  also  ;  and  the  same  principle  was 
thought  to  apply  to  charges  of  assault  with  intent  to  commit  a  rape. 
R.  V,  Clarke,  2  Stark.  N.  P.  241,  3  E.  C.  L.;  1  Phill.  Ev.  468,  9th 
ed.  But  the  law  has  now  been  settled  upon  this  point.  The  woman 
may  be  cross-examined  as  to  her  connection  with  other  men,  but  such 
questions  only  go  to  her  credit,  and  it  would  seem  need  not  be 
answered  (but  see  ante,  p.  144).  If  they  are  answered  in  the  negative, 
the  answer  is  conclusive.  R.  v.  Holmes,  L.  R.  1  C  C.  R.  334  ;  41 
L.  J.,  M.  C.  12.  It  appears  that  evidence  to  show  that  the  prosecutrix 
is  a  common  prostitute  is  still  admissible.  Per  Kelly,  C.  B.,  in  R. 
V.  Holmes,  distinguishing  R.  v.  Barker,  3  C.  &  P.  589,  14  E.  C.  L., 
where  evidence  was  called  to  show  that  the  prosecutrix  had  walked 
with  a  common  prostitute  (but  see  the  jadgment  of  Byles,  J.,  in  R.  v. 
Holmes),  and  also  evidence  of  previous  connection  with  the  prisoner, 
as  both  these  go  to  the  question  of  consent.^  R.  v.  Martin,  6  C.  &  P. 
562,  25  E.  C.  L. 

1  See  State  v.  De  Wolf,  9  Ck)nn.  93.  S.  Jenkins  v.  State,  1  Tex.  App.  346 ;  Crock- 
ett  V.  State,  49  Ga.  185. 

2  State  V.  Jones,  61  Mo.  232 ;  Burt  ».  State,  23  O.  St.  394 ;  Scott  v.  State,  48  Ala.  420. 

'  People  V.  Benson,  6  Cal.  221 ;  State  v.  Johnson,  28  Vt.  512 ;  People  v.  Jackson,  3 
Parker,  C.  R.  391.  The  prosecutrix  may  be  cross-examined  to  prove  her  unchaste. 
State  V.  Murray,  63  N.  C.  31.  [In  New  York  she  will  be  compelled  to  answer,  and 
if  she  does  so  in  the  negative,  she  may  be  contradicted.  Brennan  v.  People,  7 
Hun,  (N.  Y.)  171.]  She  may  be  asked  in  cross-examination  whether  she  had  not  had 
sexual  intercourse  with  a  designated  person  at  a  specified  time  and  place.  State  v. 
Eeed,  39  Vt.  417.  The  general  bad  character  of  the  prosecutrix  for  chastity  may  be 
shown,  but  not  particular  instances  of  unchaste  conduct,  unless  with  the  accused. 
State  V.  Forshner,  43  N.  H.  89  ;  State  v.  White,  35  Mo.  500 ;  State  v.  Knapp,  45  N. 
H.  148  ;  Commonwealth  v.  Regan,  105  Mass.  593.  [Dorsey  v.  State,  1  Tex.  App.  33; 
Rogers  v.  State,  Id.  187  ;  Woods  v.  People,  55  N.  Y.  515.  But  see  Sherwin  v.  People, 
69  111.  55.]  The  testimony  of  witnesses  to  the  general  character  of  the  prosecutrix 
in  rape  as  to  chastity,  must  be  confined  to  their  knowledge  of  it  before  the  offence  was 
committed.  They  cannot  be  allowed  to  testify  to  any  knowledge  since  acquired.  State 
V.  Forshner,  43  N.  H.  89.     S. 

State  V.  Wells,  48  la.  671.  But  see  West  v.  State,  1  Wis.  209,  where  it  was  held  that 


1124  RAPE   AND   DEFILEMENT. 

The  adinissibility  of  evidence  of  complaint  in  cases  of  rape  has  been 
fully  considered,  supra,  p.  2G. 

Defilement  of  children — proof  of  age.  In  prosecutions  for  the 
deHlement  of  children  the  iij^c  <jf  the  child  must  he  proved.  Where 
the  ofFeuce  was  committed  on  the  5th  of  Fel)ruary,  18-32,  and  the 
father,  being  called  to  prove  the  age  of  the  child,  proved  that,  on  his 
return  home  on  the  9th  of  February,  1822,  after  an  absence  of  a  few 
days,  he  found  the  child  had  been  born,  and  was  told  by  the  grand- 
mother that  she  had  been  born  the  day  before,  and  the  register  of 
baptism  showed  that  she  had  been  baptized  on  the  9th  of  February, 
1822  ;  this  evidence  was  held  insufficient  to  prove  the  age.  11.  v. 
Wedge,  5  C.  &  P.  298,  24  E.  C.  L.    See  also  p.  272. 

Where  the  mother  stated  in  examination  in  chief  that  her  child 
was  ten  years  old,  but  upon  cross-examination  her  evidence  appeared 
extremely  uncertain  ;  yet  it  was  left  to  the  jury,  who  found  that  the 
*Qn4.1  *cbild  Avas  under  twelve  years  of  age,  and  the  prisoner 
-■  having  been  convicted,  the  court  refused  to  quash  the  convic- 
tion. R.  V.  Nicholls,  10  Cox,  C.  C.  476.  A  certified  copy  of  a  reg- 
ister is  now  admissible  in  evidence  on  its  mere  production,  and  coupled 
with  evidence  of  identity,  is  proof  of  age.  R.  v.  Weaver,  L.  R.  2  C. 
C.  85 ;  43  L.  J.,  M.  C.  13. 

Defilement  of  children — nature  of  the  offence.  The  oifence  of 
procuring  defilement  is  dealt  with  in  section  49  of  the  24  &  25  Vict. 
c.  100,  supra.  The  offence  of  carnally  knowing  a  girl  under  ten  years 
of  age  was  a  felony  under  section  50 ;  and  it  was  no  defence  under 
this  section  that  the  girl  consented,  nor  was  consent  any  defence  upon 
a  charge  of  attempting  to  commit  this  offence.  Neither  of  course  would 
it  be  any  defence  under  the  substituted  section,  ante,  p.  897.  R.  v.  Beale, 
L.  R.  1  C.C.  R.  10  ;  35  L.  J.,  M.  C.  60.  The  offenceof  carnally  know- 
ing a  girl  between  the  ages  often  and  twelve  was  made  a,  misdemeanor  by 
section  51,  and  under  this  section  also  consent  was  no  defence.  R.  v. 
Neale,  1  Den.  C.  C.  36  ;  1  C.  &  K.  591,  47  E.  C.  L.  By  the  substi- 
tuted misdemeanor  section  (sect.  4),  ante,  p.  898,  consent  is  now  ex- 
pressly made  immaterial  between  the  ages  of  twelve  and  thirteen.  But 
that  section  does  not  operate  to  prevent  the  conviction  of  a  person 
committing  a  rape  upon  a  girl  between  those  ages.  R.  v.  Dicken,  14 
Cox,  C.  C.  8  ;  R.  V.  Radcliffe,  10  Q.  B.  D.  74 ;  52  L.  J.,  M.  C.  40.  Upon 
indictment  under  these  sections  the  prisoner  may  be  found  guilty  of  the 
attempt,  14  &  15  Vict.  c.  100,  s.  9,  ante,  p.  312.  Where  the  prisoner 
Avas  indicted  for  the  misdemeanor  under  s.  51,  he  could  not  be  found 
guilty  if  the  child  turned  out  to  be  under  ten  years  of  age,  for  the  14 

on  an  indictment  for  seduction,  the  government  must  prove  the  previous  chastity 
of  the  female,  as  to  presume  it  is  inconsistent  with  tlie  presumption  of  the  pris- 
oner's innocence.  Where  the  action  is  for  damages  for  an  indecent  assault  and  the 
bodily  injuries  received  are  triflins;,  the  r/rammev  of  the  charge  being  the  mental 
and  moral  outrage,  evidence  of  the  want  of  chastity  of  the  prosecutrix  is  pertinent 
and  admissible.  Mitchell  v.  Work,  ]:'>  R.  I.  (>45.  ( Jn  evidence  as  to  general  immoral 
character.    Brennan  v.  People,  7  llun,  (N.  Y.)  171. 


RAPE   AND   DEFILEMENT.  1125 

&  15  Vict.  c.  100,  s.  12,  only  says  that  if  the  facts  amount  to  a  felony 
the  prisoner  may  still  be  convicted  of  the  misdemeanor  when  such 
misdemeanor  is  proved,  but  in  this  case  the  indictment  alleging  the 
child  to  be  above  ten  and  the  proof  being  that  she  was  below  ten, 
the  indictment  was  not  proved  ;  see  K.  v.  Shott,  3  C.  &  K.  206,  and 
see  R.  V.  Jiidmer,  L.  &  C.  4<S2,  ante,  tit.  "  False  Pretences." 

An  indictment  for  a  misdemeanor  under  secstion  51  (but  see  38  & 
39  Vict.  c.  94,  s.  3,  which  now  makes  the  same  otFence  a  felony) 
charged  that  the  defendant  "  unlawfully  did  make  an  assault  upon 
A.  15.,  and  her  then  did  unlawfully  and  carnally  know."  The  jury 
found  the  defendant  guilty  of  a  common  assault.  The  court  held  the 
conviction  right,  for  that  the  two  misdemeanors  charged  were  divis- 
ible. R.  V.  Guthrie,  I..  R.  1  C.  C.  R.  241  ;  39  L.  J.,  M.  C.  95.  It 
is  observed  in  the  judgment  that  the  question  of  consent  might  arise 
as  to  the  first  averment  of  an  assault.  And  see  ante,  R.  v.  Martin,  and 
other  cases,  p.  306. 

Assault  with  intent  to  ravish.  It  is  very  common  to  prefer  an  in- 
dictment for  an  assault  with  intent  to  ravish,  under  the  24  &25  Vict. 
c.  100,  s.  38,  supra,  p.  302,  where  it  is  doubtful  whether  a  rape  has 
actually  been  committed.^ 

A  boy  under  fourteen  cannot  be  found  guilty  of  an  assault  with 
intent  to  commit  a  rape.     See  ante,  p.  898. 

On  an  indictment  for  an  assault  with  an  intent  to  commit  a  rape, 
Patteson,  J.,  held  that  the  evidence  of  the  prisoner  having,  on  a  prior 
occasion,  taken  liberties  with  the  prosecutrix,  was  not  receivable  to 
show  the  prisoner's  intent. 

In  the  same  case,  the  learned  judge  held,  that,  in  order  to  convict 
on  a  charge  of  assault  with  intent  to  commit  a  rape,  the  jury  must 
*be  satisfied,  not  only  that  the  prisoner  intended  to  gratify  his  r^qr^- 
passions  on  the  person  of  the  prosecutrix,  but  that  he  intended  L 
to  do  so  at  all  events,  and  notwithstanding  any  resistance  on  her  part. 
R.  V.  Lloyd,  7  C.  &  P.  318,  32  E.  C.  L.^ 

If  upon  an  indictment  for  this  offence  the  prosecutrix  prove  a  rape 
actually  committed,  the  defendant  may  nevertheless  be  convicted.  See 
14  &  15  Vict.  c.  100,  s.  12. 

By  43  &  44  Vict.  c.  45,  the  consent  of  a  young  person  under 
thirteen  to  an  indecent  assault  is  no  defence. 

*  An  indictment  for  an  assault  with  intent  to  ravish  cannot  be  sustained  by  proof  of 
threats.     Burney  v.  State,  21  Tex.  App.  565. 

^  It  is  the  duty  o:  the  judge,  whether  asked  or  not,  to  instruct  the  jury  on  the  law 
of  aggravated  assault,  whenever  the  evidence  is  open  to  a  construction  that  violence 
was  not  intended.  Curry  v.  State,  4  Tex.  App.  574.  The  indictment  following  the 
penal  code  may  use  the  words  intent  and  attempt  interchangeal)lv.  Curry  t'.  State,  4 
Tex.  App.  574.  As  to  pursuit  of  a  woman  as  evidence  of  intent  to  commit  rape. 
State  V.  Neely,  74  N.  C.  425 ;  State  v.  Massey,  86  N.  C.  658 ;  State  v.  Donovan,  Sup. 
a.  la.  1883,  16  N.  W.  Kep.  206. 


1126  RECEIVING   STOLEN  GOODS. 


'906] 


♦RECEIVING  STOLEN  GOODS. 


Receiving  where  the  principal  is  guilty  of  felony      ....  906 

Separate  receivers,  how  triable 906 

Persons  indicted  jointly  may  be  convicted  separately        .        .        ,  907 

Receiving  where  the  principal  is  guilty  of  a  misdemeanor    .        ,  907 

Prevention  of  Crimes  Act — guilty  knowledge 907 

Venue 907 

Joining  counts  for  stealing  and  receiving 908 

Summary  jurisdiction 908 

Form  of  indictment     .        ,        .        . 908 

Proof  of  guilt  of  principal 910 

What  is  stolen  property 911 

Presumption  arising  from  the  possession  of  stolen  property  .        .  912 

Proof  of  receiving 912 

Distinction  between  receiving  and  stealing       .        .  912 

Joint  receipt 916 

Proof  of  guilty  knowledge  and  intention        .        ,        .        .        .  918 

Election 919 

Venue 919 

Receiving  where  the  principal  is  guilty  of  felony.     By  the  24  & 

25  Vict.  c.  96,  s.  91,  "  whosoever  sliall  receive  any  chattel,  money, 
valuable  security,  or  other  property  whatsoever,  the  stealing,  taking, 
extorting,  obtaining,  embezzling,  or  otherwise  disposing  whereof  shall 
amount  to  a  felony,  either  at  common  law  or  by  virtue  of  this  Act, 
knowing  the  same  to  have  been  feloniously  stolen,  taken,  extorted, 
obtained,  embezzled,  or  disposed  of,  shall  be  guilty  of  felony,  and  may 
be  indicted  and  convicted,  either  as  an  accessory  after  the  fact,  or  for 
a  substantive  felony  ;  and  in  the  latter  case,  whether  the  principal 
felon  shall  or  shall  not  have  been  previously  convicted,  or  shall  or 
shall  not  be  amenable  to  justice ;  and  every  such  receiver,  howsoever 
convicted,  shall  be  liable  at  the  discretion  of  the  court,  to  be  kept  in 
penal  servitude  for  any  term  not  exceeding  fourteen  years,  and  not 
less  than  three  [now  five]  years,  or  to  be  imprisoned  for  any  term  not 
exceeding  two  years,  with  or  without  hard  labor,  and  with  or  without 
solitary  confinement,  and,  if  a  male  under  the  age  of  sixteen  years, 
with  or  without  whipping." 

Separate  receivers,  how  triable.  By  s.  93,  "  whenever  any  prop- 
erty Avhatsoever  shall  have  been  stolen,  taken,  extorted,  obtained,  em- 
bezzled, or  otherwise  disposed  of  in  such  a  manner  as  to  amount  to  a 
felony,  either  at  common  law  or  by  virtue  of  this  Act,  any  number  of 
receivers  at  different  times  of  such  property,  or  of  any  part  or  parts 
thereof,  may  be  charged  Avith  substantive  felonies  in  the  same  indict- 
ment, and  may  bo  tried  together,  notwithstanding  that  the  principal 
*Qn7"l  *^"-'^'^'^  shall  not  be  included  in  the  same  indictment,  or  shall 
-'    not  be  in  custody  or  amenable  to  justice." 


RECEIVIXG   STOLEN  GOODS.  1127 

Persons  indicted  jointly  may  be  convicted  separately.  By  s. 
94,  "  if  upon  the  trial  of  any  two  or  more  persons  indided  lor  jointly 
receiving  any  property  it  shall  be  proved  that  one  or  more  of  such 
persons  se|)arately  received  any  part  or  parts  of  such  property,  it  shall 
be  lawful  for  the  jury  to  convict,  upon  such  indictment,  such  of  the 
said  persons  as  shall  be  proved  to  have  received  any  part  or  parts  of 
such  property." 

Receiving  where  the  principal  is  guilty  of  a  misdemeanor.  By 

s.  95,  "  whosoever  shall  receive  any  chattel,  money,  valuable  security, 
or  other  property  whatsoever,  the  stealing,  taking,  obtaining,  convert- 
ing, or  disposing  whereof  is  made  a  misdemeanor  by  this  Act,  know- 
ing the  same  to  have  been  unlawfully  stolen,  taken,  obtained,  converted, 
or  disposed  of,  shall  be  guilty  of  a  misdemeanor,  and  may  be  indicted 
and  convicted  thereof,  whether  the  person  guilty  of  the  principal  mis- 
demeanor shall  or  shall  not  have  been  previously  convicted  thereof,  or 
shall  or  shall  not  be  amenable  to  justice  ;  and  every  such  receiver, 
being  convicted  thereof,  shall  be  liable,  at  the  discretion  of  the  court, 
to  be  kept  in  penal  servitude  for  any  term  not  exceeding  seven  years 
and  not  less  than  three  [now  five]  years,  or  to  be  imprisoned  for  any 
term  not  exceeding  tsvo  years,  with  or  without  hard  labor,  and  with 
or  without  solitary  confinement,  and  if  a  male  under  the  age  of  six- 
teen years,  with  or  without  whipping." 

Prevention  of  Crimes  Act,  1871. — Guilty  knowledge.  By  the  34 
&  35  Vict.  c.  112,  s.  19,  "where  proceedings  are  taken  against  any 
person  for  having  received  goods  knowing  them  to  be  stolen,  or  for 
having  in  his  possession  stolen  property,  evidence  may  be  given  at 
any  stage  of  the  proceedings  that  there  was  found  in  the  possession  of 
such  person  other  property  stolen  within  the  preceding  period  of 
twelve  months,  and  such  evidence  may  be  taken  into  consideration 
for  the  purpose  of  proving  that  such  person  knew  the  property  to  be 
stolen  which  forms  the  subject  of  the  proceedings  taken  against  him. 
AVhere  proceedings  are  taken  against  any  person  for  having  received 
goods  knowing  them  to  be  stolen,  or  for  having  in  his  possession 
stolen  property,  and  evidence  has  been  given  that  the  stolen  property 
has  been  found  in  his  possession,  then  if  such  person  has  within  five 
years  immediately  preceding  been  convicted  of  any  offence  involving 
fraud  or  dishonesty,  evidence  of  such  previous  conviction  may  be 
given  at  any  stage  of  the  proceedings,  and  may  be  taken  into  consid- 
eration for  the  purpose  of  proving  that  the  accused  knew  the  property 
which  was  proved  to  be  in  his  possession  to  have  been  stolen ;  pro- 
vided that  not  less  than  seven  days  notice  in  writing  shall  have  been 
given  to  the  j)erson  accused,  that  proof  is  intended  to  be  given  of  such 
previous  conviction  ;  and  it  shall  not  be  necessary  for  the  purposes  of 
this  section  to  charge  in  the  indictment  the  previous  conviction  of  the 
person  so  accused." 

Venue.     By  the  24  &  25  Vict.  c.  96,  s.  96,  "  whosoever  shall  re- 


1128  RECEIVING  STOLEN  GOODS. 

ceive  any  chattel,  money,  valuable  security,  or  other  property  whatso- 
ever, knowing  the  same  to  have  been  feloniously  or  unlawfully  stolen, 
taken,  obtained,  converted,  or  disposed  of,  may,  whether  charged  as 
*an8l  *^"  accessory  after  the  fact  to  the  felony,  or  with  a  substantive 
-J  felony,  or  with  a  misdemeanor  only,  be  dealt  with,  indicted, 
tried  and  punished  in  any  county  or  place  in  which  he  shall  have  or 
shall  have  had  any  such  property  in  his  possession,  or  in  any  county 
or  place  in  which  the  party  guilty  of  the  principal  felony  or  misde- 
meanor may  by  law  be  tried,  in  the  same  manner  as  such  receiver  may 
be  dealt  with,  indicted,  tried,  and  punished  in  the  county  or  place 
where  he  actually  received  such  property." 

Joining  counts  for  stealing  and  receiving.     See  s.  92,  supra,  p. 

206. 

Summary  jurisdiction.  By  the  42  &  43  Vict.  c.  49,  receiving 
stolen  goods,  i.  e.,  committing  any  of  the  oiFences  in  sections  91  or  95 
of  the  24  &  25  Vict.  c.  96,  ante,  pp.  906,  907,  may  in  the  cases  of 
young  persons  consenting  and  adults  pleading  guilty  be  dealt  with 
summarily,  and,  in  the  case  of  an  adult  consenting,  if  the  value  of 
the  property  does  not  exceed  40s.,  the  oifence  may  be  dealt  with  in 
like  manner. 

Form  of  indictment.  It  is  not  necessary  to  state  in  the  indictment 
the  name  of  the  principal  felon ;  and  the  usual  practice  in  an  indict- 
ment against  a  receiver  for  a  substantive  felony  is,  merely  to  state  the 
goods  to  have  been  "  before  then  feloniously  stolen,"  etc.,  without 
stating  by  whom.' 

Where  it  was  objected  to  a  count  charging  the  goods  to  have  been 
stolen  by  "  a  certain  evil-disposed  person,"  that  it  ought  either  to 
have  stated  the  name  of  the  principal,  or  else  that  he  was  unknown, 
Tindal,  C.  J.,  said,  the  oifence  created  by  the  Act  of  parliament  is  not 
the  receiving  the  stolen  goods  from  any  particular  person,  but  receiv- 
ing them,  knowing  them  to  have  been  stolen.  The  question,  there- 
fore, is,  whether  the  goods  Mere  stolen,  and  whether  the  prisoner 
received  them,  knowing  them  to  have  been  stolen.  R.  v.  Jarvis,  6  C. 
&  P.  156,  25  E.  C.  L.;  see  also  R.  v.  Wheeler,  7  C.  &  P.  170,  32  E. 
C.  L,,  post. 

Where  the  goods  have  been  stolen  by  some  person  unknown,  it  was 
formerly  the  practice  to  insert  an  averment  to  that  effect  in  the  in- 
dictment, and  such  averment  was  held  good.  R.  t\  Thomas,  2  East, 
P.  C.  781.  But  where  the  principal  was  known,  the  name  was  stated 
according  to  the  truth.  2  East,  P.  C  781.  Where  the  goods  were 
averred  to  have  been  stolen  by  persons  unknown,  a  difficulty  some- 
times arose  as  to  the  proof,  the  averment  being  considered  not  to  be 
proved,  where  it  appeared  that  in  fact  the  principals  were  known. 
Thus,  where  upon  such  an   indictment  it  was  proposed  to  prove  the 

*  The  indictment  need  not  name  the  thief,  but  he  must  be  identified  on  the  trial. 
Foster  v.  State,  8  Crim.  Law  Mag.  113. 


RECEIVING  STOLEN  GOODS.  1129 

case  by  the  evidence  of  the  principal  himself,  who  had  been  a  witness 
before  the  grand  jnry,  Le  Blanc,  J.,  interposed,  and  directed  an 
acquittal.  He  said  he  considered  the  indictment  wrong  in  stating 
that  the  property  had  been  stolen  by  a  person  unknown  ;  and  asked 
how  the  person  who  was  the  princij)al  felon  could  be  alleged  to  be 
unknown  to  the  jurors  when  they  had  him  before  them,  and  his 
name  was  written  on  the  back  of  the  bill.  R.  v.  Walker,  3  Campb, 
264. 

It  is  difficult  to  reconcile  this  decision  with  the  resolution  of  the 
judges  in  the  following  case.  The  indictment  stated  that  a  certain 
person  or  persons,  to  the  jurors  unknown,  stole  the  goods,  and  that 
the  prisoner  received  the  same  knowing  them  to  have  been  felo- 
niously stolen.  The  grand  jury  also  found  a  bill,  charging  one  Henry 
*Moreton  with  steaUng  the  same  goods,  and  the  prisoner  with  r^qriq 
receiving  them.  It  was  objected  that  the  allegation,  that  the  ^ 
goods  were  stolen  by  a  person  unknown  was  negatived  by  the  other 
record,  and  that  the  prisoner  was  entitled  to  an  acquittal.  The  pris- 
oner being  convicted,  the  point  was  reserved,  and  the  judges  held  the 
conviction  right,  being  of  opinion  that  the  finding  by  the  grand  jury 
of  the  bill,  imputing  the  principal  felony  to  Moreton,  was  no  objection 
to  the  second  indictment,  although  it  stated  the  principal  felony  to 
have  been  committed  by  certain  persons  to  the  jurors  unknown.  R.  v. 
Bush,  Russ.  &  Ry.  372. 

An  indictment  charging  that  a  certain  evil-disposed  person  felon- 
iously stole  certain  goods,  and  that  A.  B.  feloniously  incited  the  said 
evil-disposed  person  to  commit  the  said  felony,  and  that  C.  W.  and  E. 
F.  feloniously  received  the  said  goods,  know^ing  them  to  have  been 
stolen,  is  bad  as  against  A.  B.,  the  statement  that  an  evil-disposed 
person  stole,  being  too  uncertain  to  support  the  charge  against  the  ac- 
cessory before  the  fact ;  but  the  indictment  was  held  to  be  good  as 
against  the  receivers  as  for  a  substantive  felony.  R.  v.  Caspar,  2  Moo. 
C.  C.  101  ;  9  C.  &  P.  289,  38  E.  C.  L.  It  has  been  doubted  whether, 
where  the  indictment  alleges  that  the  prisoner  received  the  goods  in 
question  from  a  person  named,  it  must  be  proved  that  the  receipt  was 
in  fact  from  that  person.  But  where  A.  B.  was  indicted  for  stealing 
a  gelding,  and  C  D.  for  receiving  it,  knowing  it  to  have  been  "  so 
feloniously  stolen  as  aforesaid ; "  and  A.  B.  was  acquitted,  the  proof 
failing  as  to  the  horse  having  been  stolen  by  him ;  Patteson,  J.,  held 
that  the  other  prisoner  could  not  be  convicted  upon  that  indictment. 
R.  V.  Woolford,  1  Moo.  &  R.  384.  But  where  a  prisoner  was  indicted 
in  one  count  for  stealing  goods,  and  in  another  for  receiving  the  said 
goods,  "  so  as  aforesaid  feloniously  stolen,"  and  the  jury  acquitted 
him  of  the  stealing,  but  found  him  guilty  of  the  receiving,  and  the  coun- 
sel for  the  prisoner  moved  in  arrest  of  judgment,  upon  the  ground 
that  the  jury,  having  acquitted  him  of  the  stealing,  could  not  under 
the  second  count,  as  it  M'as  recorded,  find  him  guilty  of  receiving : 
upon  a  case  reserved  for  the  opinion  of  the  court  of  criminal  appeal, 
thev  held  the  conviction  to  be  good.  R.  v.  Craddock,  2  Den.  C.  0.  R. 
31  •  20  L.  J.,  M.  C.  31. 


1130  RECEIVING   STOLEN   GOODS. 

"Where  the  indictment  stated  tliat  the  prisoner  received  the  goods 
from  the  person  who  stole  them,  and  that  the  person  who  stole  them 
was  a  person  to  the  jurors  unknown,  and  it  appeared  that  the  person 
who  stole  the  property  handed  it  to  J.  S.,  who  delivered  it  to  the  pris- 
oner ;  Parke,  J.,  held,  that  on  this  indicrtment  it  was  necessary  to 
prove  that  the  prisoner  received  the  property  from  the  person  who 
actually  stole  it,  and  would  not  allow  it  to  go  to  the  jury  to  say 
whether  the  person  from  whom  he  was  proved  to  have  received  it 
was  an  innocent  agent  or  not  of  the  thief.  R.  v.  Elsworthy,  1  Lewin, 
C.  C.  117. 

But  where  three  persons  were  charged  with  a  larceny,  and  tAVO 
obliers  as  accessories,  in  separately  receiving  portions  of  the  stolen 
goods  ;  and  the  indictment  also  contained  two  other  counts,  one  of 
them  charging  each  of  the  receivers  separately  with  a  substantive 
felony,  in  separately  receiving  a  portion  of  the  stolen  goods  ;  the  prin- 
cipals were  acquitted,  but  the  receivers  were  convicted  on  the  last 
two  counts  of  the  indictment.  R.  v.  Pulham,  9  C.  &  P.  280,  38  E. 
C.  L. 

The  first  count  of  an  indictment  charged  the  prisoner  with  stealing 
certain  goods  and  chattels,  and  the  second  count  charged  him  with 
*Qi  nl  *receiving  "  the  goods  and  chattels  aforesaid,  of  the  value  afore- 
■J  said,  so  as  aforesaid  feloniously  stolen."  The  prisoner  was  ac- 
quitted upon  the  first  count  and  convicted  on  the  second.  It  was  held 
that  the  words  "  so  as  aforesaid  "  might  be  rejected  as  immaterial,  and 
the  indictment  read  as  alleging  simply  that  the  prisoner  had  received 
goods  feloniously  stolen  ;  and  that  the  conviction  was  good.  R.  v. 
Huntley,  Bell,  C.  C.  236 ;  29  L.  J.,  M.  C.  70. 

The  two  first  counts  of  an  indictment  charged  A.  and  B.  with  stealing, 
on  two  different  occasions,  and  the  third  count  charged  B.  Avith  re- 
ceiving. A.  was  acquitted,  no  evidence  having  been  offered  against 
him,  and  he  was  called  as  a  witness  against  the  other  prisoner.  Upon 
his  and  other  evidence,  which  showed  that  B.  Avas  an  accessory  before 
the  fact  to  the  stealing,  the  jury  found  a  general  verdict  of  guilty 
against  B.  It  was  held  that  the  conviction  on  all  the  counts  was 
good ;  for  that  as  the  11  &  12  Vict.  c.  46,  s.  1  (now  repealed),  makes 
the  being  an  accessory  before  the  fact  a  substantive  felony,  the  convic- 
tion of  the  principal  is  not  now  a  condition  precedent  to  the  conviction 
of  the  accessory  ;  and  that  there  was  no  inconsistency  in  an  accessory 
before  the  fact  being  also  a  receiver.  R.  v.  Hughes,  Bell,  C.  C.  242  ; 
29  L.  J.,  M.  C.  71. 

Where  it  was  averred  that  the  prisoner,  "  Francis  Morris  the  goods 
and  chattels,  etc.,  feloniously  did  receive  and  have ;  he  the  said 
Thomas  Morris  then  and  there  well  knowing  the  said  goods  and  chat- 
tels to  have  been  feloniously  stolen,"  etc.,  it  Avas  moved  in  arrest 
of  judgment  that  the  indictment  Avas  bad,  for  that  the  fact  of  re- 
ceiving, and  the  knoAvledge  of  the  previous  felony,  must  reside  in 
the  same  person,  Avhereas  this  indictment  charged  them  in  two 
different  persons  ;  but  the  judges  held  that  the  indictment  would 
be  good  without  the  Avords  "the  said  Thomas  Morris,"  Avhich  might' 


RECEIVING   STOLEN   GOODS.  1131 

be  struck  out  as  sur})liisag:o.  R.  v.  Morris,  1  Leach,  109.  But 
where  au  indictment  alleged  that  the  prisoner  received  the  goods  of 
A.  B.,  "  he,  the  said  A.  B.,  then  knowing  them  to  have  been  stolen," 
it  was  held  to  be  good  ground  of  motion  in  arrest  of  judgment  that 
the  scienter  was  incorrectly  stated.  11.  v.  Larkin,  1  Dears.  C.  C.  R. 
365  ;  23  L.  J.,  M.  C.  125. 

Upon  a  joint  indictment  for  receiving,  there  was  no  evidence  of  a 
joint  receipt,  but  it  appeared  that  one  prisoner  was  in  the  habit  of  re- 
ceiving goods  from  the  thief,  and  selling  them  to  the  other  prisoner, 
the  court  held  that  sect.  94  extended  to  cases  where  the  prisoners  sep- 
arately received  the  whole  of  the  stolen  property,  and  not  only  a  jmrt 
or  })arts.  R.  v.  Reardon  and  Blore,  L.  R.  1  C.  C.  R.  31  ;  35  L. 
J.,  M.  C.  171.^ 

Proof  of  guilt  of  principal.  Where  the  indictment  states  a  pre- 
vious conviction  of  the  principal,  such  conviction  must  be  proved  by 
the  production  of  an  examined  copy  of  the  record  of  the  conviction, 
and  it  is  no  objection  to  such  record  that  it  appears  therein  that  the 
principal  was  asked  if  he  was  (not  is)  guilty,  that  it  does  not  state 
that  issue  was  joined,  or  how  the  jurors  were  returned,  and  that  the 
only  award  against  the  principal  is,  that  he  be  in  mercy,  etc.  R.  v. 
Baldwin,  Russ.  &  Ry.  241  ;  3  Campb.  265  ;  2  Leach,  928  (n).  But 
if  the  indictment  state  not  the  conviction  but  the  guilt  of  the  party, 
it  seems  doubtful  how  far  the  record  of  conviction  would  be  evidence 
of  that  fact.  R.  v.  Turner,  1  Moo.  C  C  347,  ante,  p.  53.  The  opinion 
of  Mr.  Justice  Foster,  however,  is  in  favor  of  the  affirmative.  When 
*the  accessory,  he  says,  is  brought  to  trial  after  the  conviction  r^^qii 
of  his  principal,  it  is  not  necessary  to  enter  into  a  detail  of  the  '- 
evidence  on  which  the  conviction  was  founded.  Nor  does  the  indict- 
ment aver  that  the  principal  was  in  fact  guilty.  It  is  sufficient  if  it 
recites  with  proper  certainty  the  record  of  the  conviction.  This  is 
evidence  against  the  accessory,  to  put  him  on  his  defence ;  for  it  is 
founded  on  a  legal  presumption  that  everything  in  the  former  pro- 
ceeding was  rightly  and  properly  transacted.  Foster,  365.  Where 
the  principal  felon  has  been  convicted,  it  is  sufficient  in  the  indictment 
to  state  the  conviction  without  stating  the  judgment.  R.  v.  Hyman, 
2  Leach,  925  ;  2  East,  P.  C.  782  ;  R.  v.  Baldwin,  3  Campb.  265. 

The  party  charged  as  receiver  may  controvert  the  guilt  of  the  prin- 
cipal felon,  even  after  his  conviction,  and  though  that  conviction  is 
stated  in  the  indictment.  For,  as  against  him,  the  conviction  is  only 
presumptive  evidence  of  the  principal's  guilt,  under  the  rule  that  it  is 
to  be  presumed  that  in  the  former  proceeding  everything  was  rightly 
and  properly  transacted.  It  being  res  imter  alios  acta,  it  cannot  be 
conclusive  as  to  him.  Foster,  365.  If,  therefore,  it  should  appear, 
on  the  trial  of  the  receiver,  that  the  offence  of  which  the  principal  was 

^  An  indictment  for  receiving  stolen  goods  cannot  be  supported  without  proof  of 
property  either  general  or  specific  in  the  person  stated  to  be  the  owner.  Brooks  c. 
State,  5  Baxter,  (Tenn.)  607.  The  goods  may  be  named  collectively,  but  some  value 
must  be  shown.    State  v.  Gerrish,  78  Me.  20. 


1132  RECEIVING   STOLEN   GOODS. 

convlotod  did  not  amount  to  felony  (if  so  charged),  or  to  that  species 
of  ftilony  witli  which  he  is  charged,  the  receiver  ought  to  be  acquitted. 
Id.  Thus  where  tlie  principal  had  been  convicted,  and  on  the  trial 
of  the  receiver  the  conviction  was  proved,  but  it  appeared  on  the 
cross-examination  of  the  prosecutor,  that,  in  fact,  the  party  convicted 
had  only  been  guilty  of  a  breach  of  trust,  the  prisoner,  on  the  authority 
of  Foster  w'as  acquitted.  11.  v.  Smith,  1  Leach,  288  ;  li.  v.  Prosser, 
Id.  290  (n). 

The  principal  felon  is  a  competent  witness  for  the  crown  to  prove 
the  whole  case  against  the  receiver.  R.  v.  Haslam,  1  Leach,  418  ;  R. 
V.  Price,  R.  v.  Patram,  Id.  419  (w);  2  East,  P.  C.  732.  As  to  the 
confession  of  the  principal  felon  not  being  evidence  against  the  receiver, 
see  supra,  p.  53. 

What  is  stolen  property.  A  lad  having  stolen  a  brass  weight 
from  his  masters,  it  was  taken  from  him  by  another  servant  in  the 
presence  of  one  of  them,  and  was  then  returned  to  him,  in  order  that 
he  might  take  it  for  sale  to  the  prisoner,  to  whom  he  had  been  in  the 
habit  of  selling  similar  articles.  The  lad  accoidingly  took  it  and  sold 
it  to  the  prisoner.  It  was  contended  that  the  brass  could  not  be  con- 
sidered as  stolen  property,  having  been  restored  to  the  possession  of 
one  of  the  owners,  and  by  him  given  to  the  lad  to  sell  to  the  prisoner 
with  a  view  to  his  detection,  and  that  such  restoration,  for  however 
short  a  time,  was  sufficient  to  prevent  its  being  treated  afterwards  as 
stolen  property,  because  it  was  in  law  in  possession  of  the  owners. 
Coleridge,  J.,  said  he  should  consider  the  evidence  as  sufficient  in  point 
of  law  to  sustain  the  indictment,  but  would  take  a  note  of  the  objec- 
tion. The  jury  found  the  prisoner  guilty,  and  subsequently  the  learned 
judge,  without  reserving  the  point,  passed  sentence.  R.  v.  Lyon,  Carr. 
&  M.  217,  41  E.  C.  L.  But  this  case  must  be  considered  as  now 
overruled  by  R.  v.  Dolan,  1  Dears.  &  B.  C.  C.  R.  436  ;  24  L.  J.,  M. 
C.  59,  There  the  goods  alleged  to  have  been  feloniously  received,  had 
been  found  by  the  owner  in  the  pockets  of  the  thief;  but  were  subse- 
quently, a  policeman  having  been  called  in,  returned  to  him,  and 
he  was  sent  by  the  owner  to  sell  them  where  he  had  sold  others. 
The  thief  thereupon  went  to  the  shop  of  the  prisoner  and  sold  the 
*Q191  *goods,  and  gave  the  money  to  the  owner.  It  was  held  that 
"^-J  the  conviction  was  wrong  ;  Campbell,  C.  J.,  in  the  course  of 
his  judgment,  saying,  "  If  an  article  once  stolen  has  been  restored  to 
the  master  of  that  article,  and  he  having  had  it  fully  in  his  possession, 
bails  it  for  any  particular  purpose,  how  can  any  person  who  receives 
the  article  from  the  bailee  be  said  to  be  guilty  of  receiving  stolen 
goods  within  the  meaning  of  the  Act  of  parliament  ?"  R.  v.  Dolan 
was  followed  in  the  case  of  R.  v.  Schmidt,  L.  R.  1  C.  C.  R.  15  ;  35 
L.  J.,  M.  C.  94.  There  four  thieves  stole  goods  from  a  railway  station, 
and  afterwards  one  of  them  forwarded  the  stolen  goods  by  the  same 
railway.  Meanwhile  the  theft  was  discovered,  and  a  policeman  in 
employ  of  the  company  opened  the  parcel  containing  the  stolen  goods, 
and  then  gave  it  to  a  porter  to  keep  till  the  next  day,  when  he  directed 


RECEIVING   STOLEN   GOODS.  1133 

the  porter  to  take  it  to  its  address  at  the  prisoner's  house.  The  indict- 
ment laid  the  property  in  the  railway  company,  and  it  was  held  by 
the  majority  of  the  court  that  a  conviction  upon  tlio  indictment  could 
not  be  sustained,  because  there  was  an  intentional  delivery  by  the  own- 
ers (the  railway  company)  after  the  goods  had  been  returned  them. 
See  also  R.  v.  Hancock,  14  Cox,  C.  0. 11.  119. 

Presumption  arising  from  the  possession  of  stolen  property. 

Recent  possession  of  stolen  property  may,  according  to  circumstances, 
support  either  the  presumption  that  the  prisoner  stole  the  property  or 
the  presumption  that  he  received  it,  knowing  it  to  be  stolen.  For  a 
case  in  which  the  circurastauces  led  to  the  second  of  these  presump- 
tions, see  R.  V.  Longmead,  L.  &C.  427,  and  see  supra,  p.  19. 

Stolen  property  having  been  discovered  concealed  in  an  outhouse, 
the  prisoners  were  detected  in  the  act  of  carrying  it  away  from  thence, 
and  were  indicted  as  receivers.  Patteson,  J.,  said,  "There  is  no  evi- 
dence of  any  other  person  having  stolen  the  property.  If  there  had 
been  evidence  that  some  one  person  had  been  seen  near  the  house  from 
which  the  property  was  taken,  or  if  there  had  been  strong  suspicions 
that  some  one  person  stole  it,  those  circumstances  would  have  been 
evidence  that  the  prisoners  received  it,  knowing  it  to  have  been  stolen. 
If  you  are  of  opinion  that  some  other  person  stole,  and  that  the  pris- 
oners received  it  knowing  that  fact,  they  may  be  convicted  of  receiv- 
ing. But  I  confess,  it  appears  to  me  rather  dangerous  on  this  evidence 
to  convict  them  of  receiving.  It  is  evidence  on  which  persons  are  con- 
stantly convicted  of  stealing."  The  prisoners  were  acquitted.  R.  v. 
Deusley,  6  C.  &  P.  399,  25  E.  C.  L. 

Proof  of  the  receiving — distinction  between  receiving  and  steal- 
ing. There  must  be  proof  of  an  actual  taking  into  possession  of  the 
goods  alleged  to  have  been  feloniously  received.  Thus  where  the  per- 
sons who  stole  some  fowls,  sent  them  by  coach  in  a  hamper  to  Birm- 
ingham, with  directions  that  they  would  be  called  for,  and  the  prisoner 
when  claiming  the  hamper  as  hers  at  the  coach  office,  was  immediately 
taken  into  custody  ;  the  court  of  criminal  appeal  held  the  conviction 
of  the  prisoner,  as  receiver,  to  be  wrong,  on  the  ground,  that  "  who- 
ever had  possession  of  the  fowls  at  the  coach  office  when  the 
prisoner  claimed  to  receive  them,  never  parted  with  the  possession ; 
the  prisoner,  by  claiming  to  receive  the  fowls,  which  never  were 
actually  or  potentially  in  her  possession,  never  in  fact  or  law  re- 
ceived them."  R.  v.  Hill,  1  Den.  C.  C.  R.  453  ;  18  L.  J.,  M.  C.  199. 
R.  V.  Wiley,  2  Den.  C.  C.  R.  37  ;  20  L.  J.,  M.  C.  4,  was  twice  argued. 
*The  facts  were  these :  A.,  B.,  and  C.  were  jointly  indicted  for  r^q-.  o 
stealing  and  receiving  five  hens  and  two  cocks.  It  was  proved  L 
that  about  half-past  four  in  the  morning  A.  and  B.  were  seen  to  go  into 
C's  father's  house  with  a  loaded  sack,  carried  by  A.  C.  lived  with 
his  father  in  the  house,  and  was  a  hig-orler.  A.  and  B.  remained  in 
the  house  about  ten  minutes,  and  were  then  seen  to  come  out  of  the 
back-door  preceded  by  C.  with  a  candle,  A.  again  carrying  the  sack  on 


1134  RECEIVING   STOLEN   GOODS. 

his  shoulders,  and  to  go  into  a  stable  belonging  to  the  same  house  ;  the 
stable-door  was  shut  by  one  of  them,  and  on  the  polieemen  going  in 
they  found  the  sack  on  the  floor  tied  at  the  mouth,  and  the  three  men 
standing  round  it  as  if  they  were  bargaining,  but  no  words  were  heard. 
The  sack  had  a  hole  in  it,  through  which  poultry  feathers  were  pro- 
truding. The  bag  when  opened  was  found  to  contain  inter  alia  the 
stolen  property.  On  C  being  charged  with  receiving  the  poultry 
knowing  it  to  be  stolen,  he  said,  "  he  did  not  think  he  would  have 
bought  the  hens."  Upon  this  evidence  eight  out  of  twelve  of  the 
judges  held  that  C.  could  not  be  convicted  of  receiving  stolen  goods, 
inasmuch  as  though  there  was  evidence  of  a  criminal  intent  to  receive, 
and  of  a  knowledge  that  the  goods  were  stolen,  yet  the  exclusive  pos- 
session of  them  still  remained  in  the  thieves,  and  therefore  C.  had  no 
possession,  either  actual  or  constructive.  But  Patteson,  J.,  one  of  the 
majority,  said,  "  I  don't  consider  a  manual  possession  or  even  a  touch 
essential  to  a  receiving  ;  but  it  seems  to  me,  there  must  be  a  control 
over  the  goods  by  the  receiver,  which  there  was  not  here."  In  accord- 
ance with  this  opinion,  in  a  case  wdiere  the  jury  found  that  the  stolen 
property  (a  watch)  was  in  A.'s  hands  or  pocket,  but  in  the  prisonei-'s 
absolute  control,  the  court  of  criminal  appeal  held  that  he  might  be 
indicted  as  a  receiver  of  stolen  property,  although  he  liad  never 
touched  the  property,  or  had  manual  possession  of  it.  R.  v.  Smith,  1 
Dears.  C.  C.  R.  494;  24  L.  J.,  M.  C.  135.  It  frequently  happens 
that  a  doubt  arises  whether  the  acts  done  by  the  person  amount  to  a 
receiving,  or  to  a  stealing,  as  in  the  following  cases  :  from  Mliich  it 
appears  that  if  the  prisoner  took  part  in  the  transaction,  while  the  act 
of  larceny  by  others  was  continuing,  he  will  be  guilty  as  a  principal 
in  the  larceny,  and  not  as  a  receiver.  Dyer  and  Disting  were  indicted 
for  stealing  a  quantity  of  barilla,  the  property  of  Hawker.  The  goods, 
consigned  to  Hawker,  were  on  board  ship  at  Plymouth.  Hawker 
employed  Dyer,  who  was  the  master  of  a  large  boat,  to  bring  the  barilla 
on  shore,  and  Disting  was  employed  as  a  laborer,  in  removing  the  barilla 
after  it  was  landed  in  Hawker's  warehouse.  The  jury  found  that  while 
the  barilla  was  in  Dyer's  boat,  some  of  his  servants,  without  his  con- 
sent, removed  part  of  the  barilla,  and  concealed  it  in  another  part  of  the 
boat.  They  also  found  that  Dyer  afterwards  assisted  the  other  prisoner 
and  the  persons  on  board,  who  had  separated  this  part  from  the  rest  in 
removing  it  from  the  boat  for  the  purpose  of  carrying  it  off.  Graham, 
B.  (after  consulting  Buller,  J.),  was  of  opinion,  that  though,  for  some 
purposes,  as  with  respect  to  those  concerned  in  the  actual  taking,  the 
offence  w^ould  be  complete  as  an  asportation  in  point  of  law,  yet,  with 
respect  to  Dyer,  who  joined  in  the  scheme  before  the  barilla  had  been 
actually  taken  out  of  the  boat  where  it  was  deposited,  and  wdio  assisted 
in  carrying  it  from  thence,  it  was  one  continuing  transaction,  and  could 
not  be  said  to  be  completed  till  the  removal  of  the  commodity  from 
such  place  of  deposit,  and  Dyer  having  assisted  in  the  act  of  carrying 
it  off  was,  therefore,  guilty  as  principal.     R.  v.  Dyer,  2  East,  P.  C 

^  Evidence  that  cotton  was  brought  to  defendant's  house,  and  that  he  took  it  to 
market  and  sold  it  will  not  support  an  indictment  for  larceny,  without  testimony  that 
he  had  a  share  in  the  first  taking.    Hill  v.  State,  78  Ala.  1. 


EECEIVING  STOLEN   GOODS.  1135 

*767.  Another  case  arose  out  of  the  same  transaction.  The  rjtcn-i^ 
rest  of  the  barilla  having  been  lodged  in  Hawker's  warehouse,  ^ 
several  persons,  employed  by  him  as  servants,  conspired  to  steal  a 
portion  of  it,  and  accordingly  removed  part  nearer  to  the  door.  Soon 
afterwards  the  persons  who  had  so  removed  it,  together  with  Atwell 
and  O'Donncll,  who  had  in  the  meantime  agreed  to  purchase  part, 
came  and  assisted  the  others  (who  took  it  out  of  the  warehouse)  in 
carrying  it  from  thence.  Being  all  indicted  as  principals  in  larceny, 
it  was  objected  that  two  were  only  receivers,  the  larceny  being  com- 
plete before  their  participation  in  the  transaction  ;  but  Graham,  B., 
held  that  it  was  a  continuing  transaction  as  to  those  w.ho  joined  in  the 
plot  before  the  goods  were  actually  carried  away  from  the  premises ; 
and  all  the  defendants  having  concurred  in,  or  been  present  at,  the  act 
of  removing  the  goods  from  the  warehouse  where  they  had  been  de- 
posited, they  were  all  principals  ;  and  the  prisoners  were  convicted 
accordingly.     R.  v.  Atwell,  2  East,  P.  C.  768. 

In  the  following  case  the  removal  of  the  goods  was  held  to  be  so 
complete,  that  a  person  concerned  in  the  further  removal  was  held  not 
to  be  a  party  to  the  original  larceny.  Hill  and  Smith,  in  the  absence 
of  the  prisoner,  broke  open  the  prosecutor's  warehouse,  and  took 
thence  the  goods  in  question,  putting  them  in  the  street  about  thirty 
yards  from  the  warehouse  door.  They  then  fetched  the  prisoner,  who 
was  apprised  of  the  robbery,  and  who  assisted  in  carrying  the  property 
to  a  cart,  which  was  in  readiness.  The  learned  judge  who  tried  the 
case  was  of  opinion  that  this  was  a  continuing  larceny,  and  that  the 
prisoner,  who  was  present  aiding  and  abetting  in  a  continuation  of  the 
felony,  was  a  principal  in  that  portion  of  the  felony,  and  liable  to  be 
found  guilty  ;  but  on  a  case  reserved,  the  judges  were  of  opinion,  that 
as  the  property  was  removed  from  the  owner's  premises  before  the 
prisoner  was  present,  he  could  not  be  considered  as  the  principal,  and 
the  conviction,  as  such,  was  held  wrong.  R.  v.  King,  Russ.  &  Ry. 
332.  The  same  conclusion  was  come  to  in  the  following  case.  One 
Heaton  having  received  the  articles  in  question  into  his  cart,  left  it 
standing  in  the  street.  In  the  meantime  the  prisoner  M'Makin  came 
up  and  led  away  the  cart.  He  then  gave  it  to  another  man  to  take  it 
to  his  (M'Makin's)  house,  about  a  quarter  of  a  mile  distant.  Upon  the 
cart  arriving  at  the  house,  the  prisoner  Smith,  who  wasatAvork  in  the 
cellar,  having  directed  a  companion  to  blow  out  the  light,  came  up  and 
assisted  in  removing  the  articles  from  the  cart.  For  Smith  it  was  argued 
that  the  asportavit  was  complete  before  he  interfered,  and  R.  v.  Dyer, 
ante,  was  cited,  and  Lawrence,  J.,  after  conferring  with  Le  Blanc,  J., 
was  of  this  opinion,  and  directed  an  acquittal.  R.  v.  M'Makin,  Russ. 
&  Ry.  333  (n).  Upon  the  authority  of  R.  v.  King  the  following  de- 
cision proceeded.  The  prisoner  was  indicted  for  stealing  two  horses. 
It  appeared  that  he  and  one  Whinroe  went  to  steal  the  horses.  Whinroe 
left  the  prisoner  when  they  got  within  half  a  mile  of  the  place  where 
the  horses  were,  stole  the  horses,  and  brought  them  to  the  place  where 
the  prisoner  was  Avaiting  for  him,  and  he  and  the  prisoner  rode  away 
with  them.     Mr.  Justice  Bayley  at  first  thought  that  the  prisoner' 


1136  EECEIVING   STOLEN   GOODS. 

joining  in  riding  away  with  the  horses  might  be  considorcd  a  new 
larceny  ;  but,  on  adverting  to  R.  v.  King,  he  thought  this  opinion 
wrong,  and,  on  a  case  reserved,  the  judges  were  of  opinion  tliat  the 
prisoner  was  an  accessory  only,  and  not  a  principal,  because  he  was 
not  present  at  the  original  taking.  R.  v.  Kelly,  Iluss.  &  Ry.  421.  In 
*Q1  ""1  *^  ^^^^  tried  at  Monmouthshire  Spring  Assizes,  1847,  M.,  who 
'  -■  was  employed  in  loading  sacks  of  oats,  by  previous  concert  M'ith 
K.,  took  oats  from  two  of  the  sacks  and  put  them  in  a  nosebag  in  the 
absence  of  K.,  and  hid  the  nosebag.  K.  returned  in  a  few  minutes, 
and  took  away  the  nosebag  and  its  contents,  M.  then  being  within 
four  yards  of  him.  The  learned  judge  held  that  both  were  principals 
in  the  larceny.     R.  v.  Kelly,  2  C.  &  K.  379,  47  E.  C,  L. 

The  circumstances  in  the  next  case  were  held  not  to  constitute  a  re- 
ceiving. The  prisoner  Avas  indicted  for  receiving  goods  stolen  in  a 
dwelling-house  by  one  Debenham.  Debenham,  who  lodged  in  the 
house,  broke  open  a  box  there,  and  stole  the  property.  The  prisoner 
was  seen  walking  backwards  and  forwards  before  the  house,  and  occa- 
sionally looking  up ;  and  he  and  Debenham  were  seen  together  at 
some  distance,  when  he  was  apprehended,  and  part  of  the  property 
found  on  him.  The  jury  found  that  Debenham  threw  the  things  out 
of  the  window,  and  that  the  prisoner  was  in  waiting  to  receive  them. 
Mr.  Justice  Gaselee  thought,  that  under  this  finding  it  was  doubtful 
whether  the  prisoner  was  guilty  of  receiving,  and  reser\'ed  the  point 
for  the  opinion  of  the  judges,  who  held  that  the  prisoner  was  a  prin- 
cipal, and  that  the  conviction  of  him  as  receiver  was  wrong.  R.  v. 
Owen,  1  Moody,  C.  C.  96.  And  in  R.  v.  Perkins,  2  Den.  C.  C.  R. 
459,  the  Court  of  Criminal  Appeal  held  that  a  principal  in  the  second 
degree,  particeps  criminis,  could  not  at  the  same  time  be  treated  as  a 
receiver.  Maule,  J.,  said,  "  The  judge  seems  to  have  intended  to  have 
asked  us  whether  in  a  case  where  a  prisoner  was  in  a  popular  sense 
guilty  of  receiving,  he  might  be  treated  as  a  receiver,  notwithstanding 
the  fact  that  he  was  a  principal  in  the  theft ;  and  it  is  clear  that  he 
cannot."  '  In  that  case  it  was  found  as  a  fact  that  the  prisoner  was  a 
principal,  but  in  R.  v.  M'Evin,  1  Bell,  C.  C.  20,  where  the  prisoner 
was  charged  with  stealing  and  receiving,  the  jury  were  told  that  it  was 
open  to  them  to  find  a  verdict  of  guilty  of  stealing  or  receiving,  and 
they  found  a  verdict  of  guilty  of  receiving,  and  it  Mas  held  right ; 
but  where  there  was  not  sufficient  evidence  of  receiving,  but  there 
was  evidence  of  being  a  principal  in  the  second  degree,  it  was  held 
not  competent  to  the  jury  to  find  a  verdict  of  guilty  of  receiving, 
and  that  being  the  only  charge  against  the  prisoner  in  the  in- 
dictment he  could  not  be  convicted.  R.  r.  Coggins,  12  Cox,  C.  C. 
R.  517. 

The  two  prisoners  were  indicted  for  larceny.  It  appeared  that  the 
prisoner  A.  (being  in  the  service  of  the  prosecutor)  Mas   sent  by  him 

*  If  a  stranger  pursuant  to  an  arrangement  with  one  whom  he  knows  has  stolen 
goods,  invite  an  interview  with  the  owner,  and  afterwards  receive  tlie  goods  under  the 
mere  color  of  an  agency,  but  really  to  make  a  profit  out  of  the  larceny,  he  is  within 
the  statute  against  receiving  stolen  goods.    People  v.  Wiley,  3  Hill,  194,    S. 


RECEIVING   STOLEN  GOODS.  1137 

to  deliver  some  fat  to  C.  He  did  not  deliver  all  the  fat  to  C,  having 
previously  given  part  of  it  to  the  prisoner  B.  It  being  objected  that 
B.  ought  to  have  been  charged  as  receiver,  Gurney,  B.,  said  it  was  a 
question  for  the  jury  whether  B.  was  present  at  the  time  of  the  sepa- 
ration, or  received  the  fat  afterwards.  R.  v.  Butteris,  6  C.  &  P.  147, 
25  E.  C.  L. 

W.  stole  a  watch  from  A.,  and  while  W.  and  L.  were  in  custody 
together,  W.  told  L.  that  he  had  "  planted  "  the  watch  under  a  flag 
in  the  soot  cellar  of  L.'s  house.  After  this  L.  was  discharged  from 
custody,  and  went  to  the  flag  and  took  up  the  watch,  and  sent  his 
wife  to  pawn  it.  It  was  held  by  Pollock,  C.  B.,  that  if  L.  took 
the  watch  in  consequence  of  W.'s  information,  W.  telling  L.  in 
order  that  he  might  use  the  information  by  taking  the  watch,  L.  was 
indictable  for  this  as  a  receiver  of  stolen  goods ;  but  that,  if  this  was 
an  act  done  by  L.  in  opposition  to  W.,  or  against  his  will,  it  might 
be  a  question  whether  it  would  be  a  receiving.  R.  v.  Wade,  1  C.  & 
K.  *739,  47  E.  C.  L.  Upon  the  latter  supposition  it  would  be  r-^Q^  r, 
a  larceny,  see  ante,  p.  685.  L  *^  " 

Proof  of  receiving — -joint  receipt.  Where  two  persons  are  indicted 
as  joint  receivers,  it  is  not  sufficient  to  show  that  one  of  them  received 
the  property  in  the  absence  of  the  other,  and  afterwards  delivered  it 
to  him.  This  point  having  been  reserved  for  the  opinion  of  the 
judges,  they  unanimously  held  that  upon  a  joint  charge,  it  was  neces- 
sary to  prove  a  joint  receipt ;  and  that  as  one  of  the  persons  was 
absent  when  the  other  received  the  property,  it  was  a  separate  receipt 
by  the  latter.  R.  v.  Messingham,  1  Moo.  C.  C.  257.  So  where  D. 
and  G.  were  charged  with  jointly  receiving  stolen  goods,  and  the 
evidence  was  that  D.  first  received  the  goods  on  the  road  between  B. 
and  S.,  and  that  subsequently  G.  received  a  portion  of  them  at  S., 
Jervis,  C.  J.,  delivering  the  judgment  of  the  Court  of  Criminal  Appeal, 
said,  "  We  are  of  opinion  that  the  first  receiver  D.  was  properly  con- 
victed ;  and  as  R.  v.  Messingham  shows  that  several  persons  cannot 
be  convicted  of  distinct  felonies  which  are  charged  in  an  indictment  as 
a  joint  felony,  the  evidence  ought  to  have  been  confined  to  the  case  of 
the  first  receiver,  and  a  verdict  of  acquittal  taken  in  favor  of  G."  R. 
V.  Gray,  2  Den.  0.  C.  R.  86.  But  now,  by  the  24  &  25  Vict.  c.  96, 
8.  94,  supra,  p.  83,  this  difficulty  is  removed. 

A.  and  B.  were  charged  with  stealing  molasses,  and  C.  and  D.  with 
receiving  them,  knowing  them  to  have  been  stolen.  It  appeared 
that  A.  and  B.  brought  the  goods  to  C.'s  warehouse,  and  left  them 
with  D.  his  servant,  who  after  some  hesitation  accepted  them. 
C.  was  absent  at  the  time,  but  it  was  clear  on  the  facts  that  shortly 
after  he  came  home  he  was  aware  of  the  molasses  having  been  left, 
and  there  was  strong  ground  for  suspecting  that  he  then  knew  they 
had  been  stolen.  It  was  also  clear  that  D,,  soon  after  the  goods 
were  left  with  him,  was  aware  they  had  been  unlawfully  procured, 
as  he  was  found  disguising  the  barrels  in  which  they  were  contained. 
Maule,  J.,  told  the  jury  that  if  they  were  satisfied  that  C.  had 
72 


1138  RECEIVING   STOLEN   GOODS. 

directed  the  goods  to  be  taken  into  the  warehouse,  knowing  them  to 
have  been  stolen,  and  that  D.,  in  pursuance  of  that  direction,  had 
received  them  into  the  warehouse  (he  also  knowing  them  to  have 
been  stolen),  they  might  properly  convict  the  prisoners  of  a  joint 
receiving.  The  prisoners  were  convicted.  R.  v.  Parr,  2  Moo.  &  R. 
356. 

Husband  and  wife  were  indicted  jointly  as  receivers.  The  goods 
were  found  in  their  house.  Graham,  B.,  told  the  jury,  that,  generally 
speaking,  the  law  does  not  impute  to  the  wife  those  oifcnces  which 
she  may  be  supposed  to  have  committed  by  the  coercion  of  her 
husband,  and  particularly  where  his  house  is  made  the  receptacle  of 
stolen  goods ;  but  if  the  wife  appears  to  have  taken  an  active  and 
independent  part,  and  to  have  endeavored  to  conceal  the  stolen 
goods  more  effectually  than  her  husband  could  have  done,  and  by 
her  own  acts,  she  would  be  responsible  as  for  her  own  uncontrolled 
offence.  The  learned  judge  resolved  that  as  the  charge  against  the 
husband  and  wife  was  joint,  and  it  had  not  been  left  to  the  jury 
to  say  whether  she  received  the  goods  in  the  absence  of  her  husband, 
the  conviction  of  the  wife  could  not  be  supported,  though  she  had 
been  more  active  than  her  husband.     R.  v.  Archer,  1  Moo.  C.  C.  1 43. 

The  prisoner,  a  married  woman,  was  indicted  for  receiving  stolen 
*Q171  *goods.  The  evidence  showed  that  the  property  had  been  stolen 
-•  by  the  husband  from  his  employer  M'here  he  worked,  and  after- 
wards taken  home  and  given  to  his  wife.  The  Court  of  Criminal  Ap- 
peal held  that  under  these  circumstances  she  could  not  be  convicted  o 
the  offence.  R.  v,  Brookes,  1  Dears.  &  B.  C.  C.  R.  184;  22  L.  J., 
M.  C.  121. 

A  husband  may  be  convicted  of  feloniously  receiving  property 
which  his  wife  has  voluntarily  stolen,  if  he  receives  it  knowing 
that  she  has  stolen  it.  R.  v.  M'Athey,  L.  &  C.  250  ;  32  L.  J., 
M.  C.  35. 

The  two  prisoners,  husband  and  wife,  were  jointly  indicted  for 
receiving  goods  knowing  them  to  have  been  stolen.  The  jury  found 
both  the  prisoners  guilty,  and  that  the  wife  received  the  goods  with- 
out the  control  or  knowledge  of,  and  apart  from  her  husband,  and 
that  he  afterwards  adopted  his  wife's  receipt.  The  Court  of  Criminal 
Appeal  thought  that  upon  this  finding  the  husband  could  not  be  con- 
victed, as  it  did  not  show  that  he  had  taken  any  active  part  in  the 
matter,  or  did  anything  more  than  barely  consent  to  what  his  wife  had 
done.     R.  V.  Dring,  Dears.  &  B.  C.  C.  329. 

But  where  the  thief  delivered  goods  to  the  prisoner's  wife  who 
paid  him  sixpence  on  account,  and  afterwards  the  prisoner  met 
the  thief,  and  with  a  guilty  knowledge  agreed  with  him  for  the 
price,  and  paid  the  balance ;  it  was  held,  distinguishing  R.  v.  Dring, 
that  there  was  no  complete  receipt  by  the  wife,  but  that  the  prisoner 
actively  approved  of  and  ratified  her  partial  receipt,  and  was, 
therefore,  rightly  convicted.  R.  v.  Woodward,  L.  &  C.  122;  31 
L.  J.,  M.  C.  91. 

Where  a  husband  and  wife  are  indicted  for  jointly  receiving,  it  is 


EECEIVING  STOLEN  GOODS.  1139 

proper  that  the  jury  should  be  asked,  whether  the  wife  received  the 
goods  either  from,  or  in  presence  of,  her  husband.  And  where  the 
counsel  for  the  defence  suggested  that  these  questions  should  be  put, 
and  they  were  not  put,  the  court,  under  the  circumstances,  quashed 
the  conviction  as  against  the  wife.  It  appeared  in  that  case,  that  the 
goods  were  received  in  the  husband's  house  ;  it  was  probable,  there- 
fore, that  the  husband  was  present,  from  which  it  would  be  presumed 
that  the  wife  was  acting  under  his  control.  It  does  not  seem  neces- 
sary that  these  questions  should  be  put  in  every  case  in  which  the 
husband  and  wife  are  both  indicted  for  receiving,  but  only  where 
the  circumstances  of  the  case  do  not  negative  the  presence  of  the 
husband.     R.  v.  Wardroper,  Bell,  C.  C.  249  ;  29  L.  J.,  M.  C.  118. 

An  indictment  in  one  count  charged  A.  and  B.  with  a  burglary  and 
with  stealing,  and  C.  with  receiving  part  of  the  stolen  property, 
and  D.  with  receiving  other  part  of  the  stolen  property ;  another 
count  charged  C.  and  D.  with  the  substantive  felony  of  jointly  re- 
ceiving the  whole  of  the  stolen  property,  and  there  were  two  other 
counts  charging  C.  and  D.  separately  with  the  substantive  felony  of 
each  receiving  part  of  the  stolen  property.  It  was  proved  that  A. 
and  B.  had  committed  the  burglary,  and  stolen  the  property,  but  the 
evidence  as  to  the  receiving  showed  that  C.  and  D.  had  received  the 
stolen  property  on  different  occasions,  and  quite  unconnectedly  with 
each  other.  It  was  objected  that  the  count  charging  a  joint  receiving 
was  not  proved  (see  R.  v.  Messingham,  supra),  and  that  as  distinct 
felonies  had  been  committed  by  C.  and  D.,  they  ought  to  have 
been  tried  separately.  Per  Littledale,  J.,  "  there  is  certainly  some 
*inconsistency  in  this  indictment ;  but  the  practice  in  cases  of  rj^q-.  ^ 
receivers  is  to  plead  in  this  manner."  The  prisoners  were  all  ■- 
convicted.     R.  v.  Hartall,  7  C.  &  P.  475,  32  E.  C.  L. 

Where  two  receivers  are  charged  in  the  same  indictment  with  sepa- 
rate and  distinct  acts  of  receiving,  it  is  too  late  after  verdict  to  object 
that  they  should  have  been  indicted  separately.  R.  v.  Hayes,  2  Moo. 
&  Rob.  156. 

An  indictment  in  the  first  count  charged  W.  and  R.  C.  with  kill- 
ing a  sheep,  "  with  intent  to  steal  one  of  the  hind  legs  of  the  said 
sheep ;"  and  in  another  count  charged  J.  C.  with  receiving  nine 
pounds  weight  of  mutton  "of  a  certain  evil-disposed  person,"  he  then 
knowing  that  the  mutton  had  been  stolen.  Coleridge,  J.,  said,  "  This 
count  is  for  receiving  stolen  goods,  and  it  is  joined  not  with  another 
count  against  other  persons  for  stealing  anything,  but  with  a  count 
for  killing  with  intent  to  steal,  which  appears  to  me  an  offence  quite 
distinct  in  its  nature  from  that  imputed  to  the  prisoner  (J.  C).  I 
shall  not  stop  the  case,  but  I  will  take  care  that  the  prisoner  has  any 
advantage  that  can  arise  from  the  objection,  if,  upon  consideration,  I 
should  think  it  well  founded."  The  prisoners  were  all  convicted. 
R.  V.  Wheeler,  7  C.  &  P.  170,  32  E.  C.  L. 

Proof  of  guilty  knowledge  and  intention.  Evidence  must  be  given 
of  the  prisoner's  guilty  knowledge,  that  he  received  the  goods  in  ques- 


1140  RECEIVING   STOLEN   GOODS. 

tion,  knowing  them  to  have  been  stolen.'  The  usual  evidence  is,  that 
the  goods  were  bought  at  an  undervalue  by  the  receiver,  or  that  he 
concealed  the  goods.  So  evidence  may  be  given  that  the  prisoner 
pledged  or  otherwise  disposed  of  other  articles  of  stolen  property  (part 
of  the  same  transaction)  besides  those  in  the  indictment,  in  order  to 
show  the  guilty  knowledge,  R.  v.  Dunn,  1  Moo.  C.  C.  146  ;  and  of  the 
j)ossession  of  other  stolen  articles,  and  of  a  previous  conviction.  See 
this  question  discussed,  ante,  p.  98,  and  see  34  &  35  Vict.  c.  112, 
s.  19,  supra,  p.  907,  and  see  R.  v.  Carter,  12  Q.  B.  D.  522,  where  it 
was  held  that  evidence  could  not  be  given  of  other  similar  stolen 
property  which  the  prisoner  had  disposed  of  before  the  date  of  the 
stealing  charged. 

In  the  now  repealed  "Habitual  Criminal's  Act,"  32&33  Vict.  c. 
99,  s.  11,  the  notice  to  be  given  to  the  prisoner  of  an  intention  to 
prove  possession  by  him  of  other  stolen  property  was  to  the  effect 
that  he  would  be  deemed  to  have  known  the  goods  to  be  stolen  until 
he  had  proved  the  contrary.  But  it  was  held  that  notwithstanding 
these  words  the  onus  of  proof  of  guilty  knowledge  was  still  upon  the 
prosecution.  R.  v.  Davis,  L.  R.  1  C.  C.  R.  272  ;  39  L.  J.,  M.  C.  135. 
These  words  are  omitted  in  the  Prevention  of  Crimes  Act,  1871,  ante, 
p.  907. 

The  intention  of  the  party  in  receiving  the  goods  is  not  material, 
provided  he  knew  them  to  be  stolen.  Where  it  was  objected  that 
there  was  no  evidence  of  a  conversion  by  the  receiver,  Gurney,  B., 
said,  if  the  receiver  takes  without  any  profit  or  advantage,  or  whether 
it  be  for  the  purpose  of  profit  or  not,  or  merely  to  assist  the  thief,  it 
is  precisely  the  same.  R.  v.  Davis,  6  C.  &  P.  177,  25  E.  C.  L.  If  a 
receiver  of  stolen  goods  receives  them  for  the  mere  purpose  of  conceal- 
ment, without  deriving  any  profit  at  all,  he  is  just  as  much  a  receiver 
as  if  he  had  purchased  them.^  Per  Taunton,  J.,  R.  v.  Richardson,  6 
C.  &  P.  335,  25  E.  C.  L. 

^Q-|  q-i  Election.  A  person  may  be  legally  charged  in  different 
-I  counts  of  the  same  indictment,  both  as  the  principal  felon  and 
as  the  receiver  of  the  same  goods.  R.  v.  Galloway,  1  Moo.  C.  C.  234. 
But  the  judges,  on  a  case  reserved,  were  equally  divided  in  opinion 
whether  the  prosecutor  should  in  such  case  be  put  to  his  election. 
They  all  agreed,  however,  that  directions  should  be  given  to  the  re- 
spective clerks  of  assize  not  to  put  both  charges  in  the  same  indictment. 
Id.  Now,  however,  by  the  24  &  25  Vict.  c.  96,  s.  92,  these  counts 
may  be  joined  ;  supra,  p.  206.  There  may  be  as  many  counts  charg- 
ing a  felonious  receiving  of  the  same  goods  as  there  are  counts  charg- 

'  On  an  indictment  for  receiving  stolen  poods  knowledge  of  the  prisoner  that  they 
were  stolen  must  be  proved,  and  some  connection  witli  the  thief  made  out.  Foster  v. 
State,  8  Crim.  Law  Mag.  113. 

^  Where  a  person  suffered  a  trunk,  containing  stolen  goods,  to  be  put  on  board  a 
vessel  in  which  he  had  taken  his  passage,  as  part  of  his  baggage,  it  was  held  that  this 
was  such  a  receipt  of  the  goods,  as  purchaser  or  bailee,  as  justified  a  conviction  for  re- 
ceiving stolen  goods.    State  v,  Scovel,  1  Const.  Eep.  274.    S. 


RECEIVING  STOLEN  GOODS.  1141 

ing  the  stealing  of  those  goods,  and  the  prosecutor  cannot  be  put  to 
his  election  on  what  count  or  counts  he  will  })roceed.  R.  v.  Beeton,  1 
Den.  C.  C.  R.  414 ;  18  L.  J.,  M.  C.  117.  So,  also,  where  three  acts 
of  larceny  are  charged  there  may  be  three  counts  for  receiving.  See 
R.  V.  Heywood,  L.  &  C.  451,  33  L.  J.,  M.  C.  133,  ante,  p.  206.^ 

Venue.  One  half  of  a  note  issued  by  a  bank  at  S.  in  Wiltshire 
was  stolen  in  its  transit  through  the  post,  and  the  prisoner  was  proved 
to  have  received  it  with  guilty  knowledge,  but  it  was  not  proved  to 
have  been  in  his  possession  in  Wiltshire.  He  posted  it  in  Somerset- 
shire in  a  letter,  addressed  it  to  the  bank  at  S.,  requesting  pay- 
ment, which  letter  was  duly  delivered.  It  was  held  that,  upon  an 
indictment  for  receiving,  where  the  venue  was  laid  in  Wiltshire,  the 
prisoner  might  be  convicted,  for  the  possession  of  the  post-office 
servants,  who  were  the  agents  of  the  prisoner  to  present  the  note  at 
the  bank  at  S.,  might  be  treated  as  the  possession  of  the  prisoner ; 
and  that,  therefore,  the  prisoner  might  be  tried  in  Wiltshire  under 
the  7  &  8  Geo.  4,  c.  29,  s.  56  (now  repealed).  R.  v.  Cryer,  26 
L.  J.,  M.  C.  192.  See  R.  v.  Kay,  supra,  p.  885,  886,  tit.  "  Post- 
office."  ^ 

The  prisoners  were  indicted  in  the  county  of  Dorset,  on  an  indict- 
ment which  charged  them  in  several  counts  with  stealing  and  receiv- 
ing. J.  M.,  one  of  the  prisoners,  was  convicted  on  a  count  which 
charged  him  with  feloniously  receiving  "at  M.  in  the  county  of  Som- 
erset." It  was  held  that  upon  this  indictment  he  could  not  be  con- 
victed, though  by  other  counts  it  appeared  that  the  goods  were  stolen 
in  the  county  of  Dorset.  R.  v.  Martin,  1  Den.  C.  C.  398 ;  18  L.  J., 
M.  C.  137.  Where  goods  are  stolen  abroad  (e.  g.  in  Guernsey)  the 
prisoner  cannot  be  convicted  of  receiving  tliose  goods  in  England.  R. 
V.  Debruiel,  11  Cox,  C.  C.  207. 

See  also  supra,  tit.  "  Larceny." 

^  Election  is  not  compulsory  between  a  count  for  larceny  and  one  for  receiving 
stolen  goods.     Andrews  i'.  People,  117  111.  195. 

"^  An  indictment  for  receiving  stolen  goods  lies  against  one  who  receives  goods  in 
one  State,  though  stolen  in  another.    Commonwealth  v.  Andrews,  2  Mass.  14.    S. 


1142  KESCUE. 


*920]  *EESCUE. 

PAGE 

Nature  of  the  offence  ..........  920 

Proof  of  the  custody  of  the  party  rescued 920 

of  the  rescue 921 

Punishment      .•..,..*,.,.  921 

Aiding  a  prisoner  to  escape 921 

offence  under  various  statutes 921 

Nature  of  the  oflfence.  The  oflPence  of  rescue  nearly  resembles 
that  of  prison-breach,  which  has  already  been  treated  of,  ante,  p. 
887. 

Where  the  party  rescued  is  imprisoned  on  a  charge  of  felony,  the 
rescuing  is  felony  also.  1  Hale,  P.  C  606.  Where  the  offence  of  the 
former  is  a  misdemeanor,  that  of  the  latter  will  be  a  misdemeanor  also. 
Hawk.  P.  C.  b.  2,  c.  21,  s.  6.^ 

If  the  party  rescued  was  imprisoned  for  felony,  and  was  rescued  be- 
fore indictment,  the  indictment  for  the  rescue  must  surmise  a  felony 
done,  as  well  as  an  imprisonment  for  felony,  or  on  suspicion  of  felony, 
but  if  the  party  was  indicted  and  taken  upon  a  capias,  and  then  res- 
cued, there  needs  only  a  recital  that  he  was  indicted  prout,  etc.,  and 
taken  and  rescued.     1  Hale,  P.  C.  607. 

Though  the  party  rescued  may  be  indicted  before  the  principal  be 
convicted  and  attainted,  yet  he  shall  not  be  arraigned  or  tried  before 
the  principal  is  attainted.  Id.  In  such  case,  however,  he  may,  as  it 
seems,  be  indicted  and  tried  for  a  misdemeanor,  though  not  for  a  fel- 
ony.    1  Hale,  P.  C.  399. 

Proof  of  the  custody  of  the  party  rescued.  To  make  the  offence 
of  rescuing  a  party  felony,  it  must  appear  that  he  was  in  custody  for 
felony,  or  suspicion  of  felony,  but  it  is  immaterial  whether  he  was  in 
the  custody  of  a  private  person,  or  of  an  officer,  or  under  a  warrant  of 
a  justice  of  the  peace,  for  where  the  arrest  of  a  felon  is  lawful,  the 
rescue  of  him  is  felony.  But  it  seems  necessary  that  the  party  res- 
cuing should  have  knowledge  that  the  other  is  under  arrest  for  felony, 
if  he  be  in  the  custody  of  a  private  person,  though  if  he  be  in  the 
custody  of  a  constable  or  sheriff,  or  in  prison,  lie  is  bound  to  .take 
notice  of  it.  1  Hale,  P.  C.  606.  If  the  imprisonment  be  so  far 
irregular  that  the  party  imprisoned  would  not  be  guilty  of  prison- 
breach  by  making  his  escape^  a  person  rescuing  him  will  not  subject 
himself  to  the  punishment  of  rescue.  Hawk.  P.  C.  b.  2,  c.  21,  ss.  1, 
2  ;  1  Russ.  Cri.  582,  5th  ed. 

In  R.  V.  Almey,  3  Jur.  N.  S.  750,  Erie,  J.,  is  said  to  have  held 
that  the  forcible  rescue  of  a  person  in  illegal  custody  is  an  indictable 
offence. 

'  See  Commonwealth  v.  Filburn,  119  Mass.  297. 


RESCUE.  1143 

A  warrant  of  a  justice  to  apprehend  a  party,  founded  on  a  certifi- 
cate of  the  clerk  of  the  peace,  tliat  an  indictment  for  a  misdemeanor 
had  been  found  against  such  a  party,  is  good  ;  and  therefore  if  upon 
*such  warrant  the  party  be  arrested,  and  afterwards  rescued,  r:(cQ9-| 
those  who  are  guilty  of  the  rescue  may  be  convicted  of  a  mis-  '- 
demeanor.     R.  v.  Stokes,  5  C.  &  P.  148,  24  E.  C.  L. 

Proof  of  the  rescue.  The  word  rescue,  or  some  word  equivalent 
thereto,  must  appear  in  the  indictment,  and  the  allegation  must  be 
proved  by  showing  that  the  act  was  done  forcibly,  and  against  the 
will  of  the  officer  who  had  the  party  rescued  in  custody.  E,.  v. 
Burridge,  3  P.  Wms.  483.  In  order  to  render  the  offence  of  rescue 
complete,  the  prisoner  must  actually  get  out  of  the  prison.  Hawk. 
P.  C.  b.  2,  c.  18,  s.  12. 

Punishment.  Tiie  offence  of  rescuing  a  person  in  custody  for 
felony  was  formerly  punishable  as  a  felony  without  clergy  at  common 
law.  R.  V.  Stanley,  Russ.  &  Ry.  432.  But  now  by  the  1  &  2  Geo.  4, 
c.  88  (E.  &  I.),  s.  1,  "  if  any  person  shall  rescue,  or  aid  and  assist 
in  rescuing,  from  the  lawful  custody  of  any  constable,  officer,  head- 
borougli,  or  other  person  whomsoever,  any  person  charged  with,  or 
suspected  of,  or  committed  for  any  felony,  or  on  suspicion  thereof, 
then,  if  the  person  or  persons  so  offending  shall  be  convicted  of  felony, 
and  entitled  to  the  benefit  of  clergy,  and  be  liable  to  be  imprisoned 
for  any  term  not  exceeding  one  year,  it  shall  be  lawful  for  the  court 
by  or  before  whom  any  such  person  or  persons  shall  be  convicted,  to 
order  and  direct,  in  case  it  shall  think  fit,  that  such  person  or  persons, 
instead  of  being  so  fined  and  imprisoned  as  aforesaid,  shall  be  trans- 
ported beyond  the  seas  [now  penal  servitude]  for  seven  years,  or  be 
imprisoned  only,  or  be  imprisoned  and  kept  to  hard  labor  in  the 
common  gaol,  house  of  correction,  or  penitentiary  house,  for  any  term 
not  less  than  one  and  not  exceeding  three  years." 

Aiding  a  prisoner  to  escape.  Under  the  head  of  rescue  may  be 
classed  the  analogous  offence  of  aiding  a  prisoner  to  escape.  This, 
as  an  obstruction  of  the  course  of  justice,  was  an  offence  at  common 
law,  being  a  felony  where  the  prisoner  was  in  custody  on  a  charge  of 
felony,  and  a  misdemeanor  in  other  cases,  whether  the  charge  were 
criminal  or  not.  See  R.  v.  Burridge,  3  P.  Wms.  439  ;  R.  v.  Allen, 
Carr.  &  M.  295,  41  E.  C.  L. 

Aiding  a  prisoner  to  escape — offence  under  various  statutes.  The 
offence  of  assisting  a  prisoner  to  escape  has,  by  various  statutes,  been 
subjected  to  different  degrees  of  punishment. 

By  the  25  Geo.  2,  c.  37,  s.  9,  if  any  person  or  persons  whatsoever 
shall  by  force  set  at  liberty,  or  rescue,  or  attempt  to  rescue  or  set  at 
liberty,  any  person  out  of  prison  who  shall  be  committed  for  or 
found  guilty  of  murder,  or  rescue,  or  attempt  to  rescue  any  person 
convicted  of  murder,  going  to  execution,  or  during  execution,  every 


1144  RESCUE. 

person  so  offending  shall  be  deemed,  taken,  and  adjudged  to  be  guilty 
of  felony  [and  shall  suffer  death  without  benefit  of  clergy]. 

Now  by  the  7  Will.  4  &  1  Vict.  c.  91,  the  punishment  of  death  is 
abolished,  and  parties  guilty  of  the  offences  mentioned  in  the  above 
section  are  liable  to  be  transported  [now  penal  servitude]  for  life, 
or  for  not  less  than  fifteen  years,  or  to  be  imprisoned  for  any  terra 
not  exceeding  three  years.  As  to  aiding  prisoners  to  escape,  see  now 
28  &  29  Vict.  c.  126,  s.  37,  anie,  p.  889. 

Upon  the  partly  repealed  statute  16  Geo.  2,  c.  31,  it  has  been  held 
*Q99"|    *that  that  Act  is  confined  to  cases  of  prisoners  committed  for 

*^"'-'  felony  expressed  in  the  warrant  of  commitment  or  detainer, 
and  therefore  a  commitment  on  suspicion  only  is  not  within  the  Act. 
K.  V.  Walker,  1  Leach,  97 ;  R.  v.  Greenif ',  1  Leach,  363.  It  was 
likewise  held  on  the  construction  of  that  statute,  that  it  did  not  extend 
to  a  case  where  the  escape  had  been  actually  effected,  but  only  to  the 
attempt.  R.  v.  Tilley,  2  Leach,  662.  The  delivering  the  instrument 
is  an  offence  within  the  Act,  though  the  prisoner  has  been  pardoned 
for  the  offence  of  which  he  was  convicted,  on  condition  of  transporta- 
tion ;  and  a  party  may  be  convicted,  though  there  is  no  evidence  that 
he  knew  of  the  specific  offence  of  which  the  prisoner  he  assisted  had 
been  convicted.  R.  v.  Shaw,  Russ.  &  Ry.  526.  See  as  to  the  above 
statute,  1  Russ.  on  Crimes,  586  (j)  5th  ed. 

Where  the  record  of  the  conviction  of  the  person  aided  is  set  forth 
and  is  produced  by  the  proper  officer,  no  evidence  is  admissible  to 
contradict  that  record.     R.  v.  Shaw,  Russ.  &  Ry.  526.^ 

By  the  52  Geo.  3,  c.  156  (U.  K.),  aiding  and  assisting  prisoners  of 
war  to  escape  is  felony,  punishable  with  transportation  for  life  [now 
penal  servitude]  or  fourteen  or  seven  years.  See  R.  v.  Martin,  R.  & 
R.  196. 

As  to  aiding  and  assisting  persons  subject  to  military  law  to  escape, 
see  the  44  &  45  Vict.  c.  57,  s.  16. 

As  to  rescuing  returned  transports,  see  post,  tit.  "  Transportation, 
returning  from." 

As  to  obstructing  process  and  rescuing  goods,  see  1  Russ.  Cri.  558, 
5th  ed. 

1  Compare  Commonwealth  v.  Feldman,  131  Mass.  588. 


KIOTS,   ETC.     '  1145 


♦RIOTS,  ROUTS,  AND  UNLAWFUL  ASSEMBLIES.  [*923 

PAGE 

Offences  under  the  Riot  Act        ........  923 

Riotouslv  injuring  or  demolishing  buildings  .         •         .         .         .  924 

Persons  indicted  for  felony  may  be  convicted  of  misdemeanor  .  924 

Riotously  preventing  the  loading  of  ships 924 

Riotous  behavior  at  burials  .',•....  925 

Proof  of  riot .'        ...  925 

refusing  to  aid  a  constable  to  quell  a  riot    •        .        .        .  926 

upon  prosecutions  under  the  Riot  Act 926 

riotously  injuring  or  demolishing  buildings        .        .        .  927 

a  rout        .        .        .        .        • 929 

an  unlawful  assembly  .......  929 

Oflfences  under  the  Riot  Act.  By  the  1  Geo.  1,  stat.  2,  c.  5,  s.  1 
(commonly  called  the  Riot  Act),  it  is  enacted,  that  if  any  persons  to 
the  number  of  twelve  or  more,  being  unlawfully,  riotously,  and 
tumultuously  assembled  together,  to  the  disturbance  of  the  public 
peace,  and  being  required  or  commanded  by  one  or  more  justice  or 
justices  of  the  peace,  or  by  the  sheriff  of  the  county,  or  by  his  under- 
sheriff,  or  by  the  mayor,  bailiff,  or  bailiffs,  or  other  head  officer  or 
justice  of  the  peace  of  any  city  or  town  corporate  where  such  assembly 
shall  be,  by  proclamation  to  be  made  in  the  king's  name  in  the  form 
thereinafter  directed,  to  disperse  themselves,  and  peaceably  to  depart 
to  their  habitations  or  to  their  lawful  business,  and  shall,  to  the  num- 
ber of  twelve  or  more  (notwithstanding  such  proclamation  made),  un- 
lawfully, riotously,  and  tumultuously  remain  or  continue  together 
by  the  space  of  one  hour  after  such  command  or  request  made  by 
proclamation,  that  then  such  remaining  or  continuing  together  to  the 
number  of  twelve  or  more,  after  such  command  or  request  made  by 
proclamation,  shall  be  adjudged  felony  without  benefit  of  clergy,  and 
the  offenders  therein  shall  be  adjudged  felons  [and  siiall  suffer  death, 
as  in  the  case  of  felony,  without  benefit  of  clergy]. 

By  s.  5,  opposing  and  hindering  the  making  of  the  proclamation 
shall  be  adjudged  felony,  without  benefit  of  clergy,  a.nd  persons  as- 
sembled to  the  number  of  twelve,  to  whom  proclamation  should  have 
been  made,  if  the  same  had  not  been  hindered,  not  dispersing  within 
an  hour  after  such  hindrance,  having  knowledge  thereof,  shall  be  ad- 
judged felons  [and  suffer  death]. 

By  the  7  Will.  4  &  1  Vict.  c.  91^  s.  1,  after  reciting  the  above 
statute,  it  is  enacted,  "  That  if  any  person  shall,  after  the  commence- 
ment of  this  Act,  be  convicted  of  any  of  the  offences  hereinbefore  men- 
tioned, such  person  shall  not  suffer  death,  or  have  sentence  of  death 
awarded  against  him  or  her  for  the  same,  but  shall  be  liable,  at  the  dis- 
cretion of  the  court,  to  be  transported  beyond  the  seas  [now  penal  servi- 
tude] for  the  term  of  the  natural  life  of  such  offender,  or  for  any  term 


1146  BIOTS,   ETC. 

*Q9-n  *°^*  ^^^^  ^"^^^^  fifteen  years,  or  to  be  imprisoned  for  any  term 
-J  not  exceeding  three  years." 
By  s.  2,  in  cases  of  im})risonment,  the  court  may  award  hard 
labor,  and  also  solitary  confinement  not  exceeding  one  month  at 
any  one  time,  and  three  months  in  any  one  year.  And  see  3  Geo. 
4,  c.  114. 

Riotously  injuring  or  demolishing  buildings.  By  the  24  &  25 
Vict.  c.  97,  s.  11,  "if  any  persons  riotously  and  tumultuously  assem- 
bled together  to  tiie  disturbance  of  the  public  peace  shall  unlawfully 
and  with  force  demolish,  or  pull  down,  or  destroy,  or  begin  to  demol- 
ish, pull  down,  or  destroy  any  church,  chapel,  meeting-house,  or  other 
place  of  divine  worship,  or  any  house,  stable,  coach-house,  out-house, 
warehouse,  office,  shop,  mill,  malthouse,  hop-oast,  barn,  granary,  shed, 
hovel,  or  fold,  or  any  building  or  erection  used  in  farming  land,  or  in 
carrying  on  any  trade  or  manufacture,  or  any  branch  thereof,  or  any 
building  other  than  such  as  are  in  this  section  before  mentioned,  be- 
longing to  the  queen,  or  to  any  county,  riding,  division,  city,  borough, 
poor-law  union,  parish,  or  place,  or  belonging  to  any  university,  or 
college  or  hall  of  any  university,  or  to  any  inn  of  court,  or  devoted 
or  dedicated  to  public  use  or  ornament,  or  erected  or  maintained  by 
public  subscription  or  contribution,  or  any  machinery,  whether  fixed 
or  movable,  prepared  for  or  employed  in  any  manufacture,  or  in  any 
branch  thereof,  or  any  steam-engine  or  other  engine  for  sinking,  work- 
ing, ventilating,  or  draining  any  mine,  or  any  staith,  building,  or  erection 
used  in  conducting  the  business  of  any  mine,  or  any  bridge,  wagonway, 
or  trunk  for  conveying  minerals  from  any  mine,  every  such  oflPender  shall 
be  guilty  of  felony,  and  being  convicted  thereof  shall  be  liable,  at  the 
discretion  of  the  court,  to  be  kept  in  penal  servitude  for  life,  or  for 
any  term  not  less  than  three  [now  five]  years,  or  to  be  imprisoned  for 
any  term  not  exceeding  two  years,  with  or  without  hard  labor,  and 
with  or  without  solitary  confinement." 

By  s.  12,  "if  any  persons  riotously  and  tumultuously  assembled  to- 
gether to  the  disturbance  of  the  public  peace  shall  unlawfully  and  with 
force  injure  or  damage  any  such  church,  chapel,  meeting-house,  place 
of  divine  worship,  house,  stable,  coach-house,  out-house,  warehouse, 
office,  shop,  mill,  malthouse,  hop-oast,  barn,  granary,  shed,  hovel,  fold, 
building,  erection,  machinery,  engine,  stalls,  bridge,  wagonway,  or 
trunk,  as  is  in  the  last  preceding  section  mentioned,  every  such  offender 
shall  be  guilty  of  a  misdemeanor,  and  being  convicted  thereof  shall  be 
liable,  at  the  discretion  of  the  court,  to  be  kept  in  penal  servitude  for 
any  term  not  exceeding  seven  years  and  not  less  than  three  [now  five] 
years,  or  to  be  imprisoned  for  any  term  not  exceeding  two  years,  with 
or  without  hard  labor." 

Persons  indicted  for  felony  may  be  convicted  of  misdemeanor. 
By  the  same  section  it  is  provided,  "  that  if  upon  the  trial  of  any 
person  for  any  felony  in  the  last  preceding  section  mentioned  the  jury 
shall  not  be  satisfied  that  such  person  is  guilty  thereof,  but  shall  be 


RIOTS,   ETC.  1147 

satisfied  that  he  is  guilty  of  any  oifencc  in  this  section  mentioned, 
then  the  jury  may  find  him  guilty  thereof,  and  he  may  be  punished 
accordingly." 

Seamen,  etc.,  riotously  preventing  the  loading,  etc.,  of  any  ves- 
sels, etc.  *By  the  33  Geo.  3,  c.  07,  s.  1,  reciting  that  seamen,  r:i:Q9fi 
keelmen,  etc.,  had  of  late  assembled  themselves  in  great  numbers,  L 
and  had  committed  many  acts  of  violence,  and  that  such  practices,  if  con- 
tinued, might  occasion  great  loss  and  damage  to  individuals,  and  injure 
the  trade  and  navigation  of  the  kingdom,  enacts,  "  that  if  any  seamen, 
keelmen,  casters,  ship-carpenters,  or  other  persons  riotously  assembled 
together,  to  the  number  of  three  or  more,  shall  unlawfully  and  with 
force  prevent,  hinder,  or  obstruct  the  loading  or  unloading,  or  the  sail- 
ing or  navigating,  of  any  ship,  keel,  or  other  vessel,  or  shall  unlawfully 
and  with  force  board  any  ship,  keel,  or  other  vessel,  with  intent  to 
prevent,  hinder,  or  obstruct,  the  loading  or  unloading,  or  the  sailing 
or  navigating,  of  such  ship,  keel,  or  other  vessel,  every  seaman,  keel- 
man,  caster,  ship-carpenter,  and  other  person  (being  lawfully  con- 
victed of  any  of  the  offences  aforesaid,  upon  any  indictment  found  in 
any  court  of  oyer  and  terminer,  or  general  or  quarter  sessions  of  the 
peace  for  the  county,  division,  district,  etc.,  wherein  the  oifence  was 
committed),  shall  be  committed  either  to  the  common  gaol  or  to  the 
house  of  correction  for  the  same  county,  etc.,  there  to  continue  and 
to  be  kept  to  hard  labor  for  any  term  not  exceeding  twelve  calendar 
months,  nor  less  than  six  calendar  racmths."  By  sec.  4,  the  Act  shall 
not  extend  to  any  act,  deed,  etc.,  done  in  the  service,  or  by  the  au- 
thority, of  his  Majesty.  By  sec.  7,  offences  committed  on  the  high 
seas  shall  be  triable  in  any  session  of  oyer  and  terminer,  etc.,  for  the 
trial  of  offences  committed  on  the  high  seas  within  the  jurisdiction  of 
the  admiralty.  And  by  sec.  8,  the  prosecution  for  any  of  the  said 
offences  is  to  be  commenced  within  twelve  calendar  months  after  the 
offence  committed. 

Riotous  behavior  at  burials.  Riotous  or  indecent  behavior  at 
burials  is  made  a  misdemeanor  by  43  &  44  Vict.  c.  41,  s.  7. 

Proof  of  riot.  A  riot  is  defined  by  Hawkins  to  be  a  tumultuous 
disturbance  of  the  peace,  by  three  persons  or  more  assembling  to- 
gether of  their  own  authority,  with  an  intent  mutually  to  assist  one 
another,  against  any  one  who  shall  oppose  them,  in  the  execution  of 
some  enterprise  of  a  private  nature,  and  afterwards  actually  executing 
the  same,  in  a  violent  and  turbulent  manner,  to  the  terror  of  the  peo- 
ple, whether  the  act  intended  were  of  itself  lawful  or  unlawful.* 
Hawk.  P.  C.  b.  1,  c.  65,  s.  1.     See  R.  «.  Langford,  p.  927. 

*  State  V.  Brook  et  al.,  1  Hill,  362.  In  an  indictment  for  a  riot,  it  is  necessary  to 
aver,  and  on  tlie  trial  to  prove,  a  previous  unlawftd  assembly  ;  and  hence,  if  the  assem- 
bly were  lawful,  as  upon  summons  to  assist  an  officer  in  the  execution  of  lawful  pro- 
cess, the  subsequent  illegal  conduct  of  the  persons  so  assembled,  will  not  make  them 
rioters.  8tate  v.  Stalcap,  1  Ired.  Law,  30.  If  persons  innocently  and  lawfully  assem- 
bled, afterwards  confederate  to  do  an  unlawful  act  of  violence,  suddenly  proposed  and 


1148  RIOTS,   ETC. 

An  unlawful  assembling  must  be  proved,  and  therefore,  if  a  number 
of  persons  meet  together  at  a  fair,  and  suddenly  quarrel,  it  is  an 
affray,  and  not  a  riot,  ante,  p.  277  ;  but  if,  being  so  assembled,  on  a 
dispute  occurring,  they  form  into  parties,  with  promises  of  mutual 
assistance,  and  then  make  an  affray,  it  will  be  a  riot ;  and  in  this 
manner,  any  lawful  assembly  may  be  converted  into  a  riot ;  so  a 
person  joining  rioters  is  equally  guilty  as  if  he  had  joined  them  while 
assembling.     Hawk.  P.  C.  b.  1,  c.  65,  s.  3. 

Evidence  must  be  given  of  some  circumstances  of  such  actual  force 
or  violence,  or,  at  least,  of  such  apparent  tendency  thereto,  as  are 
calculated  to  strike  terror  into  the  public ;  as  a  show  of  arms, 
threatening  speeches,  or  turbulent  gestures.  Hawk.  P.  C.  b.  1,  c.  65, 
s.  5.  But  it  is  not  necessary  that  personal  violence  should  be 
done  or  offered.  Thus,  if  a  number  of  persons  come  to  a  theatre, 
and  make  a  great  noise  and  disturbance,  with  the  predetermined 
purpose  of  preventing  the  performance,  it  will  be  a  riot,  though 
*92rl  *"^  personal  violence  is  done  to  any  individual,  and  no  injury 
-I  done  to  the  house.  Clifford  v.  Brandon,  2  Campb.  358.^  But 
the  unlawfulness  of  the  object  of  an  assembly,  even  though  they  actu- 
ally carry  their  unlawful  object  into  execution,  does  not  constitute  a 
riot,  unless  accompanied  by  circumstances  of  force  or  violence ;  and  in 
the  same  manner,  three  or  more  persons  assembling  together  peaceably, 
to  do  an  unlawful  act,  is  not  a  riot.     Hawk.  P.  C.  b.  1,  c.  65,  s.  5. 

In  some  cages  in  which  the  law  authorizes  force,  the  use  of  such 
force  will  not  constitute  a  riot,  as  where  a  sheriff  or  constable,  or 
perhaps  even  a  private  person,  assembles  a  competent  number  of 
persons,  in  order  with  force  to  suppress  rebels,  or  enemies,  or  rioters. 
Hawk.  P.  C  b.  1,  c.  65,  s.  2.  So  a  private  individual  may  assemble  a 
number  of  others  to  suppress  a  common  nuisance,  or  a  nuisance  to 
his  own  land.  Thus  where  a  weir  had  been  erected  across  a  common 
navigable  river,  and  a  number  of  persons  assembled,  %vith  spades  and 
other  necessary  instruments,  for  removing  it,  and  did  remove  it,  it 
was  held  to  be  neither  a  forcible  entry  nor  a  riot.  Dalt.  c,  137.  So 
an  assembly  of  a  man's  friends  at  his  own  house,  for  the  defence  of 
his  person,  or  the  possession  of  his  house,  against  such  as  threaten  to 
beat  him,  or  to  make  an  unlawful  entry,  is  excusable.     5  Burn.  278. 

It  must  appear  that  the  injury  or  grievance  complained  of  relates 
to  some  private  quarrel  only,  as  the  inclosing  of  lands  in  which  the 
inhabitants  of  a  certain  town  claim  a  right  of  common  ;  for  where  the 

assented  to,  and  thereupon  do  an  act  of  violence  in  pursuance  of  such  purpose,  although 
their  whole  purpose  should  not  be  consummated,  it  is  a  riot.  State  ?'.  Snow,  1 8  Me. 
346,  Four  persons  acting  in  concert,  went  at  midnight  in  a  frolic  to  the  prosecutor's 
stable  and  shaved  his  horse's  tail,  and  in  so  doing  made  sufficient  noise  to  {irouse  the 
prosecutor  and  alarm  his  family — held,  that  they  were  indictable  for  a  riot.  State  v, 
Alexander,  7  Rich.  5.     S. 

A  charge  that  three  persons  unlawfully  assembled  together  and  committed  a  riot  is 
not  supported  by  proof  than  any  two  of  them  assembled  with  others.  State  v.  Kuhl- 
man,  5  Mo.  App.  587. 

'  So  when  armed  men  invade  a  house,  it  is  not  less  a  riot,  because  out  of  policy  the 
owner  received  them  peaceably  and  entertained  them,     Sanders  v.  State,  60  Ga.  126. 


RIOTS,   ETC.  1149 

intention  of  the  assembly  is  to  redress  public  grievances,  as  to  pull 
down  all  inclosures  in  general,  an  attempt  with  force  to  execute 
such  intention  will  amount  to  high  treason.  Hawk.  P.  C.  b.  1,  c.  65, 
s.  6.  Where  the  object  of  an  insurrection,  says  Mr.  East,  is  a  matter 
of  a  private  or  local  nature,  affecting,  or  supposed  to  affect,  only  the 
parties  assembled,  or  confined  to  particular  persons  or  districts,  it 
will  not  amount  to  high  treason,  although  attended  with  the  circum- 
stances of  military  parade  usually  alleged  in  the  indictments  on  this 
branch  of  treason.  As  if  the  rising  be  only  against  a  particular 
market,  or  to  destroy  particular  inclosures  (see  R.  v.  Birt,  5  C.  &  P. 
154,  24  E.  C.  L.),  to  remove  a  local  nuisance,  to  release  a  particular 
prisoner  (unless  imprisoned  for  high  treason),  or  even  to  oppose  the 
execution  of  an  Act  of  parliament,  if  it  only  affect  the  district  of  the 
insurgents,  as  in  the  case  of  a  turnpike  Act.  1  East,  P.  C.  75.  As 
to  prize  fights,  see  ante,  p.  277. 

The  act  for  the  purpose  of  executing  which  the  rioters  are  as- 
sembled must  be  proved,  otherwise  the  defendants  must  be  acquitted. 
Where  persons  assemble  together  for  the  purpose  of  doing  an  act, 
and  the  assembly  is  such  as  hereinbefore  described,  if  they  do  not 
proceed  to  execute  their  purpose,  it  is  but  an  unlawful  assembly,  not 
a  riot ;  if,  after  so  assembling,  they  proceed  to  execute  the  act  for 
which  they  assembled,  but  do  not  execute  it,  it  is  termed  a  rout ;  but 
if  they  not  only  so  assemble  but  proceed  to  execute  their  design,  and 
actually  execute  it,  it  is  then  a  riot.  1  Hawk.  c.  65,  s.  1  ;  Dalt.  c. 
136 ;  R.  V.  Birt,  5  C.  &  P.  154,  24  E.  C.  L. 

Proof  of  refusing  to  aid  constable  in  quelling  a  riot.  To  support 
an  indictment  against  a  person  for  refusing  to  aid  and  assist  a  con- 
stable in  the  execution  of  his  duty  in  quelling  a  riot,  it  is  necessary 
to  prove,  1st,  that  the  constable  saAV  a  breach  of  the  peace  com- 
mitted ;  2nd,  that  there  was  a  reasonable  necessity  for  calling  on  the 
defendant  for  his  assistance ;  and,  3rd,  that  when  duly  called  upon  to 
*assist  the  constable,  the  defendant,  without  any  physical  in-  rHcqo? 
firmity  or  lawful  excuse,  refused  to  do  so.  R.  v.  Brown,  Car.  L 
&  M.  314,  41  E.  C.  L.;  per  Alderson,  B.  It  is  not  a  valid  ground 
of  defence  to  such  an  indictment  that  from  the  number  of  rioters  the 
single  aid  of  the  defendant  would  not  have  been  of  any  use.     Id. 

A  person  charged  to  aid  a  constable,  and  who  does  so,  is  protected 
eundo,  morando,  et  redeundo.  R.  v.  Phelps,  Carr.  &  M.  180,  41 
E.  C.  L.;  per  Coltman,  J. 

Proof  upon  prosecutions  under  the  Biot  Act.  The  second  section 
of  the  Riot  Act  gives  the  form  of  the  proclamation,  concluding  with 
the  words,  "  God  save  the  King."  Where,  in  the  reading  of  the  proc- 
lamation, these  words  were  omitted,  it  was  held  that  the  persons  con- 
tinuing together  did  not  incur  the  penalties  of  the  statute.  R.  v. 
Child,  4  C.  &  P.  442,  1 9  E.  C.  L. 

Upon  an  indictment  under  the  Riot  Act,  it  was  not  proved  that  the 
prisoner  was  among  the  mob  during  the  whole  of  the  hour,  but  he  was 
proved  to  have  been  there  at  various  times  during  the  hour  ;   it  was 


1150  RIOTS,    ETC. 

held  by  Patteson,  J.,  that  it  was  a  question  for  the  jury  upon  all  the 
cii'cunislanee.s,  whether  he  did  substantially  continue  making  pilrt  of 
the  assembly  for  the  hour ;  for,  although  he  might  have  occasion  to 
separate  himself  for  a  minute  or  two,  yet,  if  in  substance  he  was  there 
during  the  hour,  he  would  not  be  thereby  excused.  E,.  v.  James,  1 
Russ.  on  Cri,  377,  5th  ed. 

The  second  or  subsequent  reading  of  the  Act  does  not  do  away  with 
the  effect  of  the  first  reading,  and  the  hour  is  to  be  computed  from  the 
time  of  the  first  reading.  Per  Patteson,  J.,  R.  v.  Woolcock,  5  C  <fe 
P.  517,  24  E.  C.  L. 

If  there  be  such  an  assembly  that  there  would  have  been  a  riot  if 
the  parties  had  carried  their  purpose  into  effect,  the  case  is  within  the 
Act,  and  whether  there  was  a  cessation  or  not,  is  a  question  for  the 
jury.     Id. 

An  indictment  under  the  Riot  Act  for  remaining  assembled  one 
hour  after  proclamation  made,  need  not  charge  the  original  riot 
to  have  been  in  terrorem  popuH ;  it  is  sufficient  if  it  pursue 
the  words  of  the  Act.  Per  Patteson,  J.,  R.  v.  James,  5  C.  &  P. 
153,  24  E.  C.  L. 

Proof  of  riotously  demolishing  buildings.  The  true  meaning  of 
the  words  "riotously  assemble,"  as  under  the  24  &  25  Vict.  c.  97, 
not  being  explained  by  the  Act,  the  common  law  definition  of  a  riot 
must  be  resorted  to,  and  in  such  case,  if  any  one  of  her  Majesty's  sub- 
jects be  terrified,  this  is  sufficient  terror  and  alarm  to  substantiate  that 
part  of  the  charge  of  riot.  Per  Patteson,  J.,  R.  v.  Langford,  Carr.  & 
M.  602,  41  E.  C.  L. 

Although  the  prisoners  are  charged  only  with  a  beginning  to  de- 
molish, pull  down,  etc.,  yet  in  order  to  secure  a  conviction  under 
the  24  &  25  Vict.  c.  97,  s.  11,  supra,  p.  924,  it  must  appear  that 
such  a  beginning  was  with  intent  to  demolish  the  whole.  The  be- 
ginning to  pull  down,  said  Park,  J.,  in  a  case  where  the  prisoners 
were  so  charged,  means  not  simply  a  demolition  of  a  part,  but  of  a 
part  with  intent  to  demolish  the  whole.  If  the  prisoners  meant  to 
stop  where  they  did  (i.  e.,  breaking  windows  and  doors),  and  do  no 
more,  they  are  not  guilty ;  but  if  they  intended,  when  they  broke 
the  windows,  etc.,  to  go  further,  and  destroy  the  house,  they  are 
guilty  of  a  capital  offence.  If  they  had  the  full  means  of  going 
*Q9i^l  *further,  and  were  not  interrupted,  but  left  off  of  their  own 
-'  accord,  it  is  evidence  that  they  meant  the  work  of  demolition 
to  stop  where  it  did.  It  was  proved  that  the  parties  began  by  break- 
ing the  windows,  and  having  afterwards  entered  the  house,  set  fire  to 
the  furniture  ;  but  no  part  of  the  house  was  burnt.  Park,  J.,  said  to 
the  jury,  "If  you  think  the  prisoners  originally  came  there  without 
intent  to  demolish,  and  that  the  setting  fire  to  the  furniture  was  an 
afterthought,  but  with  tiiat  intent,  then  you  must  acquit,  because  no 
part  of  the  house  having  been  burnt,  there  was  no  beginning  to  de- 
stroy the  house.  If  they  came  originally  without  such  intent,  but  had 
afterwards  set  fire  to  the  house,  the  offence  is  arson.  If  you  have 
doubts  whether  they  originally  came  with  an  intent  to  demolish,  you 


EIOTS,   ETC.  1151 

may  use  the  setting  fire  to  the  furniture  under  such  circumstances,  and 
in  such  manner  as  that  the  necessary  consequence,  if  not  for  timely  in- 
terference, would  have  been  the  biu'ning  of  the  house,  as  evidence  to 
show  that  they  had  su(!h  intent,  although  they  began  to  demolish  in 
another  manner."  R.  v.  A^hton,  1  Lcwin,  C.  C.  296.  The  same  rule 
was  laid  down  in  the  two  following  cases  : — The  prisoners  about  mid- 
night came  to  the  house  of  the  prosecutor,  and  having  in  a  riotous 
manner  burst  open  the  door,  broke  some  of  the  furniture,  and  all  the 
windows'  and  did  other  damage,  after  which  they  went  away,  though 
there  was  nothing  to  prevent  them  committing  further  injury,  Little- 
dale,  J.,  told  the  jury  that  this  was  not  a  "beginning  to  demolish," 
unless  they  should  be  satisfied  that  the  ultimate  object  of  the  rioters 
was  to  demolish  the  house  ;  and  that  if  they  had  carried  their  inten- 
tions into  full  effect,  they  would  in  fact  have  demolished  it.  That 
such  was  not  the  case  here,  for  that  they  had  gone  away,  having  mani- 
festly completed  their  purpose,  and  done  all  the  injury  they  meant  to 
do.  R.  V.  Thomas,  4  C.  &  P.  237,  19  E.  C.  L.;  and  see  6  C.  &  P. 
333,  25  E.  C.  L.  See  also  R.  v.  Adams,  Carr.  &  M.  299,  where  Col- 
eridge, J.,  said  to  the  jury,  "Before  you  can  find  the  prisoners  guilty, 
you  must  be  of  opinion  that  they  meant  to  leave  the  house  no  house 
at  all  in  fiict.  If  they  intended  to  leave  it  still  a  house,  though  in  a 
state  however  dilapidated,  they  are  not  guilty  under  this  highly  penal 
statute."  Injuries  not  intended  for  the  destruction  of  the  whole 
house  are  now  provided  for  by  the  24  &  25  Vict.  c.  97,  s.  12, 
supra,  p.  924. 

If  in  a  case  of  feloniously  demolishing  a  house  by  rioting,  it  appears 
that  some  of  the  prisoners  set  fire  to  the  house  itself,  and  that  others 
carried  furniture  out  of  the  house,  and  burnt  it  in  a  fire  made  on  a 
gravel  walk  on  the  outside  of  the  house,  it  will  be  for  the  jury  to  say 
whether  the  latter  were  not  encouraging  and  taking  part  in  a  general 
design  of  destroying  the  house  and  furniture ;  and  if  so,  the  jury 
ought  to  convict  them.  Per  Tindal,  C.  J.,  R.  v.  Harris,  Carr.  &  M. 
661.  If  a  house  be  demolished  by  rioters  by  means  of  fire,  one  of  the 
rioters  who  is  present  while  the  fire  is  burning  may  be  convicted  for 
the  felonious  demolition  under  the  statute,  although  he  is  not  proved 
to  have  been  present  when  the  house  was  originally  set  on  fire.  R.  v, 
Simpson,  Carr.  &  M.  669,  41  E.  C.  L. 

When  an  election  mob  pursued  a  person  who  took  refuge  in  a  house, 
upon  which  they  attacked  the  house,  shouting,  "  Pull  it  down !"  and 
broke  the  door  and  windows,  and  destroyed  much  of  the  furniture,  but, 
being  unable  to  find  the  person  they  were  in  search  of,  went  away ;  Tin- 
dal, C.  J.,  ruled,  that  the  case  was  not  within  the  statute,  the  object  of 
the  rioters  not  being  to  destroy  the  house,  but  to  secure  the  person  they 
were  in  search  of.  R.  v.  Price,  5  C.  &  P.  510,  24  E.  C.  L.  But 
*the  case  may  fall  within  the  statute,  though  the  intent  to  de-  r*Qoq 
molish  may  be  accompanied  with  another  intent,  which  may  •- 
have  influenced  the  conduct  of  the  rioters.  Thus,  where  a  party  of 
coal-whippers  having  a  feeling  of  ill-will  towards  a  coal-lumper,  who 
paid  less  than  the  usual  wages,  collected  a  mob,  and  went  to  the  house 
where  he  kept  his  pay-table,  exclaiming  that  they  would  murder  him, 


1152  RIOTS,   ETC. 

and  began  to  throw  stones,  etc.,  and  broke  the  windows  and  partitions, 
and  part  of  a  wall,  and  after  his  escape  continued  to  throw  stones, 
etc.,  till  stopped  by  the  police ;  Gurney,  B.,  ruled  that  the  parties 
might  be  convicted  under  the  7  &  8  Geo.  4,  c.  30,  s.  8  (repealed),  of 
beginning  to  demolish,  though  their  principal  object  might  be  to  injure 
the  limiper,  provided  it  was  also  their  object  to  demolish  the  house, 
on  account  of  its  having  been  used  by  him.  R,.  v.  Batt,  6  C.  &  P. 
329,  25  E.  C.  L. 

On  an  indictment  for  riotously,  etc.,  beginning  to  demolish  and  de- 
molishing a  dwelling-house,  total  demolition  is  not  necessary,  though 
the  parties  were  not  interrupted.  If  the  house  be  destroyed  as  a 
dwelling  it  is  enough.  Four  men,  members  of  and  connected  with  the 
family  of  the  owner  of  the  cottage,  with  great  violence,  and  to  his 
terror,  drove  him  from  it,  and  pulled  it  down  all  but  the  chimney  :  it 
was  held  sujfficient  to  satisfy  the  statute  though  no  other  persons  were 
within  reach  of  the  alarm ;  they  having  no  bond  fide  claim  of  right, 
but  intending  to  injure  the  owner.  R.  v.  Phillips,  2  Moo.  C.  C.  552. 
If  rioters  destroy  a  house  by  fire,  this  is  a  felonious  demolition  of  it 
within  the  statute,  and  the  persons  guilty  of  such  an  offence  may  be 
convicted  on  an  indictment,  founded  on  that  enactment,  and  need  not 
be  indicted  for  arson  under  s.  2  of  the  same  statute.  Fer  Tindal,  C 
J.,  R.  V.  Harris,  Carr.  &  M.  661,  41  E.  C.  L. 

Proof  of  a  rout.  A  rout  seems  to  be,  according  to  the  general 
opinion,  a  disturbance  of  the  peace,  by  persons  assembled  together, 
with  an  intention  to  do  a  thing,  which,  if  executed,  would  make 
them  rioters,  and  actually  making  a  motion  towards  the  execution 
thereof,  but  not  executing  it.^  Hawk.  P.  C.  b.  1,  c.  65,  s.  1  ;  1  Puss. 
Cri.  372,  5th  ed. 

Proof  of  an  unlawful  assembly.  Any  meeting  whatsoever  of  great 
numbers  of  people,  with  such  circumstances  of  terror  as  cannot  but 
endanger  the  public  peace,  and  raise  fears  and  jealousies  amongst  the 
king's  subjects,  seems  properly  to  be  called  an  unlawful  assembly,  al- 
though the  meeting  neither  actually  executes  its  jnirpose,  or  makes  any 
motion  towards  its  execution,  as  where  great  numbers  complaining  of  a 
common  grievance,  meet  together  armed  in  a  warlike  mauHer,  in  order 
to  consult  respecting  the  most  proper  means  for  the  recovery  of  their 
interests,  for  no  one  can  foresee  what  mav  be  the  event  of  such  an 
assembly.  Hawk.  P.  C.  b.  1,  c.  65,  s.  9  ;  R.  v.  M'Naughtcn,  14  Cox, 
C.  C.  Ir.  576.  The  circumstances  which  constitute  an  unlaAvful 
assembly  were  much  discussed  in  the  case  of  Redford  v.  Birley,  3 
Stark.  N.  P.  C.  76,  3  E.  C.  L.  In  that  case,  Holroyd,  J.,  said,  an 
unlawful  assembly  is  where  persons  meet  together  in  a  manner 
and  under  circumstances  which  the  law  does  not  allow,  but 
makes  it  criminal  in  those  persons  meeting  together  in  such 
a  manner,  knowingly,  and  with  such  purposes  as  are  in  point 
of  law  criminal.  He  then  proceeded  to  state  what  may  constitute 
an  unlawful  assembly,  adopting  the  language  used  by  Bay  ley,  J., 
*  State  V.  Sumner,  2  Spears.  599.    S. 


RIOTS,   ETC.  1153 

*in  R.  V.  Hunt,  at  York.  All  persons  assembled  to  sow  scdl-  r^q.jrj 
tion,  and  bringiuj^  into  contempt  the  constitntion,  are  an  nnlaw-  L 
fiil  assembly.  With  regard  to  meetings  for  drillings,  he  said,  if  the 
object  of  the  drilling  is  to  secure  the  attention  of  the  persons  drilled  to 
disatfccted  speeches,  and  give  confidence  by  an  appearance  of  strength 
to  those  willing  to  join  them,  that  would  be  illegal  ;  or  if  they 
were  to  say,  we  will  have  what  we  want,  whether  it  be  agreeable 
to  law  or  not,  a  meeting  for  that  purpose,  however  it  may  be 
masked,  if  it  is  really  for  a  purpose  of  that  kind,  would  be  illegal. 
If  the  meeting,  from  its  general  appearance,  and  all  the  accompanying 
circumstances,  is  calculated  to  excite  terror,  alarm,  and  consternation, 
it  is  generally  criminal  and  unlawful.  And  it  has  been  laid  down 
by  Alderson,  B.,  that  "any  meeting  assembled  under  such  circum- 
stances as,  according  to  the  opinion  of  rational  and  firm  men,  are 
likely  to  produce  danger  to  the  tranquillity  and  peace  of  the  neigh- 
borhood, is  an  unlawful  assembly  ;  and  in  viewing  this  question,  the 
jury  should  take  into  their  consideration  the  way  in  which  the  meet- 
ings were  held,  tiie  hour  at  which  they  met,  and  the  language  used 
by  the  persons  assembled,  and  by  those  who  addressed  them  ;  and 
then  consider  whether  firm  and  rational  men,  having  their  families 
and  property  there,  would  have  reasonable  ground  to  fear  a  breach  of 
the  peace,  as  the  alarm  must  not  be  merely  such  as  would  frighten 
any  foolish  or  timid  person,  but  must  be  such  as  would  alarm  persons 
of  reasonable  firmness  and  courage."  R.  v.  Vincent,  9  C.  &  P.  91. 
All  persons  who  join  an  assembly  of  this  Idnd,  disregarding  its  prob- 
able effect  and  the  alarm  and  consternation  which  are  likely  to 
ensue,  and  all  who  give  countenance  and  support  to  it,  are  criminal 
parties.  Per  Littledale,  J.,  R.  v.  Neale,  9  C.  &  P.  431,  38  E.  C.  L. 
It  seems  that  in  order  to  be  unlawful,  the  circumstances  of  terror  must 
exist  in  the  assembly  itself,  either  in  its  object  or  mode  of  carrying  it 
out ;  for  if  the  assembly  is  for  a  lawful  purpose,  and  there  is  no  inten- 
tion of  carrying  it  out  unlawfully,  the  persons  composing  it  would  not 
be  guilty  of  "  an  unlawful  and  tumultuous  assembly,"  although  they 
knew  that  their  assembly  would  be  opposed,  and  had  good  reason 
to  suppose  that  a  breach  of  the  peace  would  be  committed  by  those 
who  opposed  it.  A  religious  association,  calling  themselves  "  the 
Salvation  Army,"  assembled  to  the  number  of  above  one  hundred 
persons,  and  forming  a  procession,  headed  by  flags  and  music, 
marched  through  the  streets  of  Weston-super-Mare,  as  they  had 
done  on  previous  occasions.  They  were  met  by  an  organized  band 
of  persons,  calling  themselves  "  the  Skeleton  Army,"  who  also 
were  in  the  habit  of  parading  the  streets,  and  were  antagonistic  to 
"  the  Salvation  Army."  The  two  bodies  met,  and,  as  on  several 
previous  occasions,  a  free  fight,  great  uproar,  blows,  tumult,  stone- 
throwing,  and  disorder  ensued.  It  was  held  that  the  Salvation  Army 
having  assembled  together  without  any  circumstances  of  terror  in 
the  assembly,  could  not  be  convicted  of  "  unlawfully  and  tumultuously 
assembling."  Beatty  v.  Gilbanks,  9  Q.  B.  D.  308 ;  51  L.  J.,  M.  C. 
117. 

73 


1154  ,   ROBBERY. 


'931] 


•ROBBERY. 


PAGE 

Robbery  or  stealing  from  the  person 931 

Conviction  for  assault  with  intent  to  rob,  on  indictment  for  robbery  931 

Assault  with  intent  to  rob ,  932 

Robbery  with  violence  or  by  more  than  one  person        .        .        .  932 

Robbery  at  common  law .        .        ,  9S2 

Proof  of  the  goods,  etc.,  taken ,      .  932 

of  the  taking      .        .        .        • 933 

of  the  felonious  intent 934 

of  the  taking  from  the  person    . 934 

of  the  taking  in  presence  of  the  owner 935 

of  the  taking  against  the  will  of  the  owner      ....  936 

of  the  violence 936 

of  violence  used  under  pretence  of  legal  or  rightful  proceedings  938 

of  putting  in  fear 939 

by  threatening  to  accuse  of  unnatural  crimes  .        ,        •  943 

must  be  before  the  taking 949 

Robbery  or  stealing  from  the  person.  By  the  24  &  25  Vict.  c. 
96,  s.  40,  "  whosoever  shall  rob  any  person,  or  shall  steal  any  chattel, 
money  or  valuable  security  from  the  person  of  another,  shall  be 
guilty  of  felony,  and  being  convicted  thereof  shall  be  liable,  at  the 
discretion  of  the  court,  to  be  kept  in  penal  servitude  for  any  term  not 
exceeding  fourteen  years,  and  not  less  than  three  [now  five]  years,  or 
to  be  imprisoned  for  any  term  not  exceeding  two  years,  with  or  without 
hard  labor,  and  with  or  without  solitary  confinement."  In  addition 
to  the  punishment  here  awarded,  the  court  may  order  the  offender  if 
a  male  to  be  once,  twice,  or  thrice  privately  whipped.  See  26  &  27 
Vict.  c.  44. 

Conviction  for  assault  with  intent  to  rob,  on  indictment  for  rob- 
bery. By  s.  41,  "  if  upon  the  trial  of  any  person  upon  any  indict- 
ment for  robbery,  it  shall  appear  to  the  jury  upon  the  evidence  that 
the  defendant  did  not  commit  the  crime  of  robbery,  but  that  he  did 
commit  an  assault  with  intent  to  rob,  the  defendant  shall  not  by  reason 
thereof  be  entitled  to  be  acquitted,  but  the  jury  shall  be  at  liberty  to 
return  as  their  verdict  that  the  defendant  is  guilty  of  an  assault  with 
intent  to  rob ;  and  thereupon  such  defendant  shall  be  liable  to  be  pun- 
ished in  the  same  manner  as  if  he  had  been  convicted  upon  an  indict- 
ment for  feloniously  assaulting  with  intent  to  rob  ;  and  no  person  so 
tried  as  is  herein  lastly  mentioned  shall  be  liable  to  be  afterwards 
prosecuted  for  an  assault  with  intent  to  commit  the  robbery  for  which 
he  is  so  tried." 


932] 


*Assault  with  intent  to  rob.  By  s.  42,  "  whosoever  shall 
assault  any  person  with  intent  to  rob  shall  be  guilty  of  fel- 
ony, and  being  convicted  thereof,  shall  (save  and  except  in  the  cases 
where  a  greater  punishment  is  provided  by  this  Act)  be  liable,  at  the 


ROBBERY.  1155 

discretion  of  the  court,  to  be  kept  in  penal  servitude  for  the  term  of 
three  [now  five]  years,  or  to  be  imprisoned  for  any  term  not  exceed- 
ing two  years,  with  or  without  hard  labor,  and  with  or  without  soli- 
tary confinement." 

Robbery  with  violence  or  by  more  than  one  person.     By  s.  43, 

"  whosoever  shall,  being  armed  with  any  otlensive  weapon,  or  instru- 
ment, rob,  or  assault  with  intent  to  rob,  any  person,  or  shall,  together 
with  one  or  more  other  person  or  jx;rsons,  rob,  or  assault  with  intent 
to  rob  any  person,  or  shall  rob  any  person,  and  at  the  time  of  or  im- 
mediately before  or  immediately  after  such  robbery  shall  wound,  beat, 
strike,  or  use  any  other  personal  violence  to  any  other  person,  shall  be 
guilty  of  felony,  and  being  convicted  thereof  shall  be  liable,  at  the  dis- 
cretion of  the  court,  to  be  kept  in  penal  servitude  for  life,  or  for  any 
term  not  less  than  three  [now  five]  years,  or  to  be  imprisoned  for  any 
term  not  exceeding  two  years,  with  or  without  hard  labor,  and  with 
or  without  solitary  confinement."  In  addition  to  the  punishment  here 
awarded  the  court  may  order  the  offender,  if  a  male,  to  be  once,  twice, 
or  thrice  privately  whipped.     See  the  26  &  27  Vict.  c.  44. 

Robbery  at  common  law.  Robbery  from  the  person,  which  Is  a 
felony  at  common  law,  is  thus  defined  : — a  felonious  taking  of  money 
or  goods  of  any  value  from  the  person  of  another,  or  in  his  presence 
against  his  will,  by  violence  or  putting  him  in  fear.^  2  East,  P.  C. 
707. 

Proof  of  the  goods,  etc.,  taken.  It  must  be  proved  that  some 
property  was  taken,  for  an  assault  with  intent  to  rob  is  an  offence  of 
a  different  and  inferior  nature.  2  East,  P.  C.  707.  But  the  value 
of  the  property  is  Immaterial,  a  penny,  as  well  as  a  pound,  forcibly 
extorted,  constitutes  a  robbery,  the  gist  of  the  offence  being  the  force 
and  terror.  3  Inst.  69  ;  1  Hale,  P.  C.  532  ;  2  East,  P.  C.  707;  2  Puss. 
Cri.  82,  5th  ed. ;  R.  v.  Morris,  9  C.  &  P.  349,  38  E.  C.  L.  Thus  where 
a  man  was  knocked  down  and  his  pockets  rifled,  but  the  robbers  found 
nothing  except  a  slip  of  paper  containing  a  memorandum,  an  indict- 
ment for  robbing  him  of  the  paper  was  held  to  be  maintainable.  R.  v. 
Bingley,  coram  Gurney,  B.,  5  C.  &  P.  602,  24  E.  C.  L.  In  the  follow- 
ing case  it  was  held  that  there  was  no  property  in  the  prosecutor  so  as  to 
support  an  Indictment  for  robbery.  The  prisoner  was  charged  with  rob- 
bing the  prosecutor  of  a  promissory  note.  It  appeared  that  the  pros- 
ecutor had  been  decoyed  by  the  prisoner  Into  a  room  for  the  purpose 
of  extorting  money  from  him.  Upon  a  table  covered  with  black  silk 
were  two  candlesticks  c(?vered  also  with  black,  a  pair  of  large  horse 

^  See  as  to  robbery  generally,  People  v.  Beck,  21  Cal.  385 ;  State  v.  Wilson,  67  N. 
C.  456  ;  Collins  v.  People,  39  111.  233  ;  Cress  v.  State,  3  Cold.  350  ;  Brennon  v.  State, 
25  Ind.  403  ;  People  v.  Shuler,  28  Cal.  490 ;  State  v.  Jenkins,  36  Mo.  372 ;  Common- 
wealth V.  Brooks,  1  Duv.  150 ;  Commonwealth  v.  Holland,  Id.  182 ;  People  v.  Vice,  21 
Cal.  344.    S. 

Robbery  and  grand  larceny  may  be  joined  in  one  indictment,  and  a  verdict  of  guilty 
as  charged  in  the  information  is  sufScient.    People  v.  Gilbert,  60  Cal.  108. 


1156  ROBBERY. 

pistols  ready  cocked,  a  tumbler  glass  filled  with  gunpowder,  a  saucer 
■with  leaden  balls,  two  knives,  one  of  them  a  prodigiously  large  carving 
knife,  their  handles  wrapped  in  black  crape,  pens,  and  inkstand, 
several  sheets  of  paper,  and  two  ropes.  The  prisoner,  Mrs.  Phipoe, 
seized  the  carving  knife,  and  threatening  to  take  away  the  prosecutor's 
life,  the  latter  was  compelled  to  sign  a  promissory  note  for  2000^. 
upon  a  piece  of  stamped  paper  wliich  had  been  provided  by  the 
*Q'>o-|    *prisoner.     It  was  objected  that  there  was  no  property  in   the 

^^-'  prosecutor,  and  the  point  being  reserved  for  the  opinion  of  the 
judges,  they  held  accordingly.  They  said  that  it  was  essential  to  lar- 
ceny, that  the  property  stolen  should  be  of  some  value ;  that  the  note 
in  this  case  did  not  on  the  face  of  it  import  either  a  general  or  special 
property  in  the  prosecutor,  and  that  it  was  so  far  from  being  of  any 
the  least  value  to  him,  that  he  had  not  even  the  property  of  the  paper 
on  wliich  it  was  written  ;  for  it  appeared  that  both  the  paper  and  ink 
were  the  property  of  Mrs.  Phipoe,  and  the  delivery  of  it  by  her  to 
him  could  not,  under  the  circumstances  of  the  case,  be  considered  as, 
vesting  it  in  him,  but  if  it  had,  as  it  was  a  property  of  which  he  was 
never,  even  for  an  instant,  in  the  peaceable  possession,  it  could  not  be 
considered  as  property  taken  from  his  person,  and  it  was  well  settled 
that,  to  constitute  the  crime  of  robbery,  the  property  must  not  only  be 
valuable,  but  it  must  also  be  taken  from  the  person  and  peaceable 
possession  of  the  owner.  R.  v.  Phipoe,  2  Leach,  673  ;  2  East,  P.  C. 
599.  See  R.  v.  Edwards,  6  C.  &  P.  515,  521,  25  E.  C.  L.,  post,  tit. 
"  Threats." 

A  servant  who  had  received  money  from  his  master's  customers, 
was  robbed  of  it  on  his  way  home.  Upon  its  being  objected  that  the 
money  could  not  be  laid  as  the  property  of  the  master,  Alderson,  B., 
inclined  to  think  the  objection  valid,  and  w^ould  have  reserved  the 
point,  but  as  the  grand  jury  were  sitting,  the  learned  baron  directed 
the  jury  to  be  discharged,  and  a  new  indictment  to  be  preferred,  con- 
taining a  count  laying  the  property  in  the  servant.  R.  v.  Rudick,  8 
C.  &  P.  237,  34  E.  C.  L. 

Proof  of  the  taking.  In  order  to  constitute  a  talcing,  there  must 
be  a  possession  of  the  robber.  Therefore,  if  a  man,  having  a  purse 
fastened  to  his  girdle,  is  assaulted  by  a  thief,  who,  in  order  more 
readily  to  get  the  purse,  cuts  the  girdle,  whereby  the  purse  falls  to  the 
ground,  this  is  no  taking  of  the  purse,  for  the  thief  never  had  it  in  his 
possession.  1  Hale,  P.  C.  533.  But  if  the  thief  had  taken  up  the 
purse  from  the  ground,  and  afterwards  let  it  fall  in  the  struggle,  with- 
out taking  it  up  again,  it  would  have  been  robbery,  for  it  would  have 
been  once  in  his  possession.  Id.  However  short  a  period  of  posses- 
sion, it  is  sufficient.  The  prisoner  taking  the  prosecutor's  purse  im- 
mediately returned  it,  saying,  "  If  you  value  your  purse  you  will 
please  to  take  it  back,  and  give  me  the  contents  of  it :"  the  prosecutor 
took  it  back,  and  the  prisoner  at  that  moment  Avas  apprehended.  The 
court  (Hotham,  B.,  and  Willes,  J.,)  held,  that  though  the  prosecutor 
did  not  eventually  lose  either  his  purse  or  his  money,  yet  as  the 


ROBBERY.  1157 

prisoner  had  in  fact  demanded  the  money,  and,  under  the  impulse  of 
that  threat  and  demand,  the  property  had  been  once  taken  from  the 
prosecutor  by  the  prisoner,  it  was  in  strictness  of  law  a  sufficient 
taking  to  complete  the  offence,  although  tlie  prisoner's  possession  had 
continued  for  an  instant  only.  K.  v.  Peat,  1  Lcacih,  320 ;  2  East,  P. 
C.  557,  708.  See  R.  v.  Lapier,  1  Leach,  326,  ayiie,  p.  050.  It  has 
been  observed,  with  regard  to  cases  of  this  description,  that  though  it 
was  formerly  held  that  a  sudden  taking  or  snatching  of  any  property 
from  a  ])crson  unawares  was  sufficient  to  constitute  robbery,  the  con- 
trary doctrine  a{)pears  to  be  now  established  (see  R.  v.  Gnosil,  1  C.  & 
P.  304) ;  and  that  no  taking  by  violence  will  at  the  pres(>nt  day  be  con- 
sidered as  sufficient  to  constitute  robbery,  unless  some  injury  be  done 
to  the  person  (as  in  R,  v.  Lapier,  ante,  p.  650),  or  unless  there  be  some 
*previous  struggle  for  the  possession  of  the  property,  or  r:t:Qoj^ 
some  force  used  to  obtain  it.  1  Russ.  Cri.  84,  5th  ed.;  •- 
vide,  post. 

Proof  of  the  taking — felonious  intent.  The  robbery  must  be 
animo  farandi,  with  a  felonious  intent  to  appropriate  the  goods  to  the 
offender's  own  use.  And  as  there  must  be  a  felonious  intent  with  re- 
gard to  the  goods  charged  in  the  indictment,  it  is  not  enough  that  the 
prisoner  had  at  the  same  time  an  intent  to  steal  other  goods,  A.  as- 
saulted B.  on  the  highway  with  a  felonious  intent,  and  searched  his 
pockets  for  money,  but  finding  none,  pulled  off  the  bridle  of  B.'s 
horse,  and  threw  that  and  some  bread  which  B.  had  in  panniers  about 
the  highway,  but  did  not  take  anything  from  B.  Upon  a  conference 
of  all  the  judges,  this  was  resolved  to  be  no  robbery.  Anon.,  2  East, 
P.  C.  662. 

Though  the  party  charged  took  the  goods  with  violence  and  menaces, 
yet  if  it  be  under  a  bond  fide  claim,  it  is  no  robbery.  The  prisoners 
had  set  wires  in  which  game  was  caught.  The  gamekeeper,  finding 
them,  was  carrying  them  away  when  the  prisoner  stopped  him,  and 
desired  him  to  give  them  up.  The  gamekeeper  refused,  upon  which 
the  prisoner,  lifting  up  a  large  stick,  threatened  to  beat  out  the  keeper's 
brains  if  he  did  not  deliver  them.  The  keeper  fearing  violence  de- 
livered them.  Upon  an  indictment  for  robbery,  Vaughan,  B.,  said, 
"  I  shall  leave  it  to  the  jury  to  say,  whether  the  prisoner  acted  upon 
an  impression  that  the  wires  and  pheasants  were  his  own  property  ; 
for,  however  he  might  be  liable  to  penalties  for  having  them  in  his 
possession,  yet  if  the  jury  think  that  he  took  them  under  a  bond  fide 
impression  that  he  was  only  getting  back  the  possession  of  his  own 
property,  there  was  no  animus  fjirandi,  and  the  prosecution  must 
fail."  The  prisoner  was  acquitted.  R.  v.  Hall,  3  C.  &  P.  409, 
14  E.  C.  L.     See  also  R.  v.  Boden,  1  C.  &  K.  395,  47  E.  C.  L. 

It  sometimes  happens  that  the  original  assault  is  not  made  wnth  the 
particular  felonious  intent  of  robbing  the  party  of  the  property  sub- 
sequently taken  ;  but  if  the  intent  arises  before  the  property  is  taken, 
it  is  sufficient ;  as  where  money,  offered  to  a  person  endeavoring  to 
commit  a  rape,  is  taken  by  him.     The   prisoner  assaulted  a  woman, 


1158  ROBBERY. 

with  intent  to  ravish  her,  and  she,  without  any  demand  made  by  him, 
offered  him  money,  which  he  took,  and  put  into  his  pocket,  but  con- 
tinued to  treat  the  woman  with  violence,  in  order  to  effect  his  original 
purpose,  till  he  was  interru])ted.  A  majority  of  the  judges  held  this 
to  be  robbery,  on  the  ground  that  the  woman,  from  the  violence  and 
terror  occasioned  by  the  prisoner's  behavior,  and  to  redeem  her 
chastity,  offered  the  money,  which,  it  was  clear,  she  would  not 
have  done  voluntarily,  and  that  the  prisoner,  by  taking  it,  de- 
rived an  advantage  to  himself  from  his  felonious  conduct,  though 
his  original  attempt  was  to  commit  a  rape.  R.  v.  Blackham,  2  East, 
P.  C.  711. 

The  question  of  the  animus  furandi  often  arises  incases  where,  after 
a  quarrel  and  assault,  part  of  the  property  of  some  of  the  parties  en- 
gaged in  the  transaction  has  been  carried  away.  The  question  in  these 
cases  is,  whether  the  articles  were  taken  in  frolic,  or  from  accident,  or 
from  malice,  but  not  miimo  furandi.  If  the  jury  negative  the  intent 
the  prisoner  cannot  be  convicted  of  a  common  assault.  E.  v.  Wood- 
hall,  12  Cox,  C\  C.  240. 


*935] 


Proof  of  tbe  taking — from  the  person.  It  is  not  necessary  that  the 
goods  should  actually  be  taken  from  off  the  person  of  the 
prosecutor;  if  they  are  in  his  personal  custody,  and  are  taken  in 
his  presence,  it  is  sufficient.  But  it  is  otherwise  where  they  are  in  the 
personal  custody  of  a  third  person.  The  two  prisoners  were  indicted 
for  assaulting  the  prosecutor,  and  robbing  him  of  a  bundle.  It  ap- 
peared that  the  prosecutor  had  the  bundle  in  his  own  personal  custody, 
in  a  beer-shop,  and  when  he  came  out,  gave  it  to  his  brother,  who  was 
with  him,  to  carry  it  for  him.  "While  on  the  road  the  prisoners  as- 
saulted the  prosecutor;  upon  which,  his  brother  laid  down  the  bundle 
in  the  road,  and  ran  to  his  assistance.  One  of  the  prisoners  then 
took  up  the  bundle  and  made  oflF  with  it.  Vaughan,  B.,  intimated  an 
opinion  that  the  indictment  was  not  maintainable,  as  the  bundle  was 
in  the  possession  of  another  person  at  the  time  of  the  assault  com- 
mitted. Highway  robbery  was  the  felonious  taking  of  the  property 
of  another,  by  violence,  against  his  will,  either  from  his  person  or  in 
his  presence.  The  bundle,  in  that  case,  was  not  in  the  prosecutor's 
possession.  If  the  prisoners  intended  to  take  the  bundle,  why  did 
they  assault  the  prosecutor,  and  not  the  person  who  had  it  ?  The 
prisoners  were  convicted  of  simple  larceny.  R.  v.  Fallows,  5  C.  &  P. 
508,  24  E.  C.  L. 

The  following  evidence  was  held  not  to  be  sufficient.  The  prose- 
cutor said,  "  I  felt  a  pressure  of  two  persons,  one  on  each  side  of  me ; 
I  had  secured  my  book  in  an  inside  pocket  of  my  coat ;  I  felt  a  hand 
between  my  coat  and  waistcoat.  I  was  satisfied  the  prisoner  was 
attempting  to  get  my  book  out.  The  other  person  had  hold  of  my 
right  arm,  and  I  forced  it  from  him,  and  thrust  it  down  to  my  book ; 
in  doing  which  I  brushed  the  prisoner's  hand  and  arm.  The  book 
was  just  lifted  out  of  my  pocket ;  it  returned  into  my  pocket.  It 
was  out,  how  far  I  cannot  tell ;  I  saw   a  slight  glance  of  a  man's 


ROBBERY.  •  1159 

hand  down  from  my  breast ;  I  secured  the  prisoner  after  a  severe 
struggle."  On  cross-examination,  tlie  prosecutor  said,  "  I  am  satis- 
fied the  book  was  drawn  from  my  pocket ;  it  was  an  inch  above  the 
top  of  the  pocket.''  The  prisoner  being  convicted,  on  a  case  resented, 
six  of  the  judges  thought  tliat  the  prisoner  was  not  rightly  convicted 
of  stealing  from  the  person,  because,  from  first  to  last,  the  book  re- 
mained about  the  person  of  the  prosecutor.  Four  of  their  lordships 
were  of  a  contrary  opinion ;  but  the  judges  were  unanimously  of 
opinion  that  the  simple  larceny  was  complete.  R.  v.  Thompson, 
1  Moo.  C.  C.  78.  In  R.  v.  Simpson,  1  Dears.  C.  C.  R.  421  ;  24  L.  J., 
M.  C.  7,  the  prosecutor  carried  his  watch  in  a  waistcoat-pocket,  with 
a  chain  attached  passing  through  a  button-hole  of  the  waistcoat, 
being  there  secured  by  a  watch  key.  The  prisoner  took  the  watch 
out  of  the  pocket,  and  by  force  drew  the  chain  out  of  the  button-hole, 
but  the  watch  key  having  been  caught  in  a  button  of  the  waistcoat, 
the  M'atcli  and  chain  remained  suspended.  It  was  held  there  was 
a  sufficient  severance  to  maintain  a  conviction  for  stealing  from 
the  person.  Jervis,  C  J.,  in  giving  judgment,  said,  "  It  is  unneces- 
sary to  pronounce  any  opinion  on  R.  v.  Thompson.  There  seems  to 
be  some  confusion  in  the  use  of  the  expression,  'about  the  person  '/ 
here  the  watch  was  temporarily  and  for  one  moment  in  the  possession 
of  the  prisoner." 

Proof  of  the  taking — in  presence  of  the  owner.  The  taking  need 
not  be  by  the  immediate  delivery  of  the  party  to  the  offender,  or  im- 
mediately from  the  person  of  the  party  robbed  ;  it  is  sufficient  if  it  be 
*in  his  presence.'  The  instances  given  by  Lord  Hale  are,  where  r^qor^ 
a  carrier  is  driving  his  pack-horses,  and  the  thief  takes  his  horse  ■- 
or  cuts  his  pack  and  takes  away  the  goods  ;  or  where  a  thief  comes 
into  the  presence  of  A.,  and  with  violence,  and  putting  A.  in  fear, 
drives  away  his  horse,  cattle,  or  sheep.  1  Hale,  P.  C  533.  But  it 
must  appear  in  such  cases,  that  the  goods  were  taken  in  the  presence 
of  the  prosecutor.  Thus  where  thieves  struck  money  out  of  the  owner's 
hand,  and  by  menaces  drove  him  away,  to  prevent  his  taking  it  up 
again,  and  then  took  it  up  themselves  ;  these  facts  being  stated  in  a 
special  verdict,  the  court  said  that  they  could  not  intend  that  the 
thieves  took  up  the  money  in  the  sight  or  presence  of  the  owner,  and 
that,  as  the  striking  the  money  out  of  the  hand  was  without  putting 
the  owner  in  fear,  there  was  no  robbery.  R.  v.  Francis,  2  Str.  1015  ; 
Com.  Rep.  478  ;  2  East,  P.  C.  708.  And  the  same  was  resolved  in 
another  case,  with  the  concurrence  of  all  the  judges.  R.  v.  Grey,  2 
East,  P.  C.  708.  Where  robbers,  by  putting  in  fear,  made  a  wagoner 
drive  his  wagon  from  the  highway  in  the  daytime,  but  did  not  take 
the  goods  till  night ;  some  held  it  to  be  a  robbery  from  the  first  force, 
but  others  considered  that  the  wagoner's  possession  continued  till 
the  goods  were  actually  taken,  unless  the  wagon  were  driven  away 

■  As  if  by  intimidation  he  is  compelled  to  open  his  desk  or  throw  down  his  purse, 
and  then  the  money  is  taken  in  his  presence.  United  States  v.  Jones,  3  Wash.  C.  C. 
Kep.  209.     S. 


1 1 60  *  ROBBERY. 

by  the  thieves  themselves.     2  East,  P.  C.  707  ;  1  Russ.  on  Cri.  88, 
5th  ed. 

Proof  of  the  taking — against  the  will  of  the  owner.  It  must  ap- 
pear that  the  taking  was  against  tiio  will  of  the  owner.  Several  j)er- 
sons  conspired  to  obtain  for  themselves  the  rewards  given  by  statute 
for  apprehending  robbers  on  the  highway.  The  robbery  was  to  be 
effec^ted  upon  Salmon,  one  of  the  con  federates,  by  Blee,  another  of  the 
confederates,  and  two  strangers  procured  by  Blee.  It  was  expressly 
found,  that  Salmon  consented  to  part  with  his  goods  under  pretence 
of  a  robbery,  and  that  for  that  purpose,  he  went  to  a  higliway,  at 
Deptford,  where  the  colorable  robbery  took  place.  The  judges  were 
of  opinion  that  this  did  not  amount  to  robbery  in  any  of  the  prisoners, 
because  Salmon's  property  was  not  taken  from  him  against  his  will. 
K.  V.  M'Daniel,  Fost.  121,  122.  But  it  is  otherwise  where  the  party 
robbed  delivers  money  to  the  thief,  though,  at  the  same  time,  with 
the  intent  and  power  of  immediately  apprehending  them.  One  Nor- 
den,  having  been  informed  of  several  robberies  by  a  highwayman, 
resolved  to  apprehend  him.  For  this  purpose  he  put  a  little  money 
and  a  pistol  in  his  pocket,  and  took  a  chaise.  The  robber  stopped  the 
chaise,  and  demanded  money.  Norden  gave  him  what  money  he  had, 
jumped  out  of  the  chaise  with  the  pistol  in  his  hand,  and  \vith  some 
assistance  apprehended  the  prisoner.  The  prisoner  w^as  convicted  of 
this  robbery,  and  the  conviction  was  approved  of  by  Mr.  Justice 
Foster,  who  distinguishes  it  from  the  former  case,  on  the  ground  that 
there  was  no  concert  or  connection  between  Norden  and  the  highway- 
man.^    Anon.,  Foster,  129. 

Proof  of  the  violence.  It  must  be  proved  that  the  goods  w  ere  taken 
either  by  violence  or  that  the  owner  was  put  in  fear ;  but  either  of 
these  facts  will  be  sufficient  to  render  the  felonious  taking  a  robbery,^ 
2  East,  P.  C.  708  ;  1  Kuss.  on  Cri.  89,  5th  ed.  Where  violence  is  used, 
it  is  not  necessary  to  prove  actual  fear.  "  I  am  very  clear,"  says  Mr. 
Justice  Foster,  "  that  the  circumstances  of  actual  fear  at  the  time  of 
the  robbery  need  not  be  strictly  proved.  Suppose  the  man  is  knocked 
j^Qoy-i  *down,  without  any  previous  warning  to  awaken  his  fears, 
J  and  lies  totally  insensible,  while  the  thief  rifles  his  pock- 
ets, is  not  this  a  robbery?"  Foster,  128.  And  if  fear  be  a 
necessary  ingredient,  the  law  in  odium  spoUatoris  will  presume  it, 
where  there  appears  to  be  so  just  a  ground  for  it.  Id.  2  East,  P. 
C.  711.3 

1  Kit  V.  State,  11  Humphrey,  167.     S. 

*  Commonwealth  v.  Snelling,  4  Binnev,  379  ;  Commonwealth  v.  Humphries,  7  Mass. 
242  ;  Case  of  Morris,  6  Rog.  Rec.  86.  [State  i'.  Burke,  73  N.  C.  83.]  If  the  taking  be 
under  such  circumstances  as  would  be  likely  to  create  an  apprehension  of  danger  in 
the  mind  of  a  man  of  ordinary  experience,  and  induce  him  to  part  with  his  property 
for  tlie  safety  of  his  person,  it  is  robbery.  Actual  fear  need  not  be  strictly  proven,  it 
will  be  presumed.     Long  v.  State,  12  Ga.  293  ;  see  Seymour  v.  State,  15  Ind.  288.     S. 

^  The  offence  of  robbery  is  sustained  by  proof  of  an  assault.  State  v.  Gorham,  55 
N.  H.  152.     But  where  there  is  no  putting  in  fear  the  violence  must  be  concomitant 


ROBBERY.  *  llGl 

With  regard  to  the  degrees  of  violence  necessary,  it  has  been  seen, 
ante,  p.  933,  that  the  siuhkMi  taking  of  a  thing  unawares  from  the 
person,  as  by  snatching  anytliing  from  the  hand  or  head,  is  not  suf- 
ficient to  constitute  robbery,  unless  some  injury  be  done  to  the  person, 
or  unless  there  be  some  previous  struggling  for  the  possession  of  the 
property.  In  R.  i'.  Lapier,  ante,  p.  650,  it  was  held  robbery,  because 
an  injury  was  done  to  the  person.  2  East,  P.  C.  557,  708.  A  boy 
was  carrying  a  bundle  along  the  street,  when  the  prisoner  ran  past 
him,  and  snatched  it  suddenly  away,  but  being  pursued,  let  it  fall. 
Being  indicted  for  robbery,  the  court  (Hotham,  B.,  and  Adair,  Ser- 
jeant) said  the  evidence  in  this  case  does  not  amount  to  a  robbery ; 
for  though  he  snattihed  the  bundle,  it  was  not  with  that  degree  of 
force  and  terror  that  is  necessary  to  constitute  this  offence.  R.  v. 
Macauley,  1  Leach,  217.  And  the  same  has  been  resolved  in  several 
other  cases,  in  wiiich  it  has  appeared  that  there  was  no  struggle  for 
the  property.  R.  v.  Baker,  1  Leach,  290 ;  R.  v.  Robins,  Id.  (n) ;  R. 
V.  Da  vies.  Id.  (n) ;  R.  v.  Horner,  Id.  191  (n).  In  R.  v.  Hughes,  2 
C  &  K.  214,  61  E.  C.  L.,  where  the  prisoner  having  asked  the  pros- 
ecutor to  tell  him  the  time,  and  the  prosecutor  having  taken  out  his 
watch  in  order  to  answer  the  prisoner,  holding  it  loosely  in  both 
hands,  the  prisoner  caught  hold  of  the  ribbon  and  snatched  the  watch 
away,  and  made  off  with  it ;  Patteson,  J.,  held  that  this  was  not  a 
robbery,  but  stealing  from  the  person. 

But  where  a  degree  of  violence  is  used  sufficient  to  cause  a  personal 
injury,  it  is  robbery ;  as  where,  in  snatching  a  diamond  pin  fastened 
in  a  lady's  hair,  part  of  the  hair  was  torn  away  at  the  same  time.  R. 
V.  Moore,  1  Leach,  335,  and  see  R.  v.  Lapier,  Id.  320,  ante,  p.  650. 
A  case  is  said  to  have  been  mentioned  by  Holroyd,  J.,  which  occurred 
at  Kendal,  and  in  which  the  evidence  was  that  a  person  ran  up  against 
another,  for  the  purpose  of  diverting  his  attention  while  he  picked  his 
pocket ;  and  the  judges  held,  tiiat  the  force  was  sufficient  to  make  it 
robbery,  it  having  been  used  with  that  intent.  Anon.,  1  Lewin,  C.  C. 
300.  It  aj)peared  in  evidence  that  the  prisoner  and  others,  in  the 
streets  of  Manchester,  hung  around  the  prosecutor's  person,  and  rifled 
him  of  his  watch  and  money.  It  did  not  appear  that  any  actual  force 
or  menace  was  used,  but  they  surrounded  him  so  as  to  render  any  at- 
tempt at  resistance  hazardous,  if  not  in  vain.  Bayley,  J.,  on  the  trial 
of  these  parties  for  robbery,  said,  in  order  to  constitute  robbery,  there 
must  be  either  force  or  menaces.  If  several  persons  surround  another 
so  as  to  take  away  his  power  of  resistance,  this  is  robbery.  R.  v. 
Hughes,  1  Lewin,  C.  C.  301. 

So  if  there  be  a  struggle  between  the  offender  and  the  owner,  for 
the  possession  of  the  property,  it  will  be  held  to  be  such  a  violence  as 
to  render  the  taking  robbery.  The  prisoner  was  indicted  for  taking  a 
gentleman's  sword  from  his  side,  clam  et  seci'ete;  but,  it  appear- 
ing that  the  gentleman  perceived  the  prisoner  had  laid  hold  of  his 
sword,  and  that  he  himself  laid  hold  of   it  at  the  same  time  and 

with  the  attempt,  in  order  to  make  an  assault  with  attempt  to  rob  ;    it  cannot  be  sub- 
sequent.    Hanson  v.  State,  43  Ohio,  376. 


1162  ROBBERY. 

struggled  for  it,  this  was  adjudged  a  robbery.     R.  v.  Davies,  2  East, 
P.  C.  709. 

The  prisoner  coming  up  to  the  prosecutor  in  the  street,  laid  violent 
hold  of  the  seals  and  chains  of  his   watch,  and  succeeded  in  pulling 

♦Q'^sl  *'^  ^''^  ^^'  ^^^^  ^"**'^'  ^^^'^'  watch  was  fastened  with  a  steel  chain, 
"^  -■  which  went  round  his  neck,  and  which  j)revented  the  prisoner 
from  immediately  taking  the  watch  ;  but,  by  pulling,  and  two  or  three 
jerks,  he  broke  the  steel  chain,  and  made  oif'  with  the  watch.  It  was 
objected  that  this  came  within  the  cases  as  to  snatching  ;  but  the 
judges,  on  a  case  reserved,  were  unanimously  of  opinion  that  the 
conviction  was  right,  for  that  the  prisoner  could  not  obtain  the  watch 
at  once,  but  had  to  overcome  the  resistance  the  steel  chain  made,  and 
actual  force  was  used  for  that  purpose.  R.  v.  Mason,  Russ.  &  Ry.  419. 
In  order  to  constitute  the  oifence  of  robbery,  not  only  force  must  be 
employed  by  the  party  charged  therewith,  but  it  is  necessary  to  show 
that  such  force  was  used  with  the  intent  to  accomplish  the  robbery. 
Where,  therefore,  it  appeared  that  a  wound  had  been  accidentally  in- 
flicted in  the  hand  of  the  prosecutrix,  it  was  held  by  Alderson,  B., 
that  an  indictment  for  robbing  could  not  be  sustained.  R.  v,  Edwards, 
1  Cox,  C.  C.  32. 

An  indictment  for  robbery  which  charges  the  prisoners  with  having 
assaulted  G.  P.  andH.  P.,  and  stolen  2s.  from  G.  P.,  and  Is.  from  H. 
P.,  is  correct,  if  the  robbery  of  G.  P.  and  H.  P.  was  all  one.act ;  and 
if  it  were  so,  the  counsel  for  the  prosecution  will  not  be  put  to  elect. 
R.  V.  Giddins,  Carr.  &  M.  634,  41  E.  C.  L. 

Proof  of  violence — under  pretence  of  legal  or  rightful  pro- 
ceedings. Violence  may  be  committed  as  well  by  actual  unlaM'ful 
force,  as  under  pretence  of  legal  and  rightful  proceedings.  Merriman, 
carrying  his  cheeses  along  the  highway  in  a  cart,  was  stopped  by  one 
Hall,  who  insisted  on  seizing  them  for  want  of  a  permit  (which  Avas 
found  by  the  jury  to  be  a  mere  pretence  for  the  purpose  of  defrauding 
Merriman,  no  permit  being  necessary).  On  an  altercation,  they  agreed 
to  go  before  a  magistrate  and  determine  the  matter.  In  the  meantime 
other  persons  riotously  assembled  on  account  of  the  dearness  of  pro- 
visions, and  in  confederacy  with  Hall  for  the  purpose,  carried  off  the 
goods  in  Merriman's  absence.  It  was  objected  that  this  was  no  rob- 
bery, there  being  no  force  used  :  but  Hewitt,  J.,  overruled  the  objec- 
tion, and  left  it  to  the  jury,  who  found  it  robbery,  and  brought  in  a 
verdict  for  the  plaintiff;  and,  upon  a  motion  for  a  new  trial  in  K.  B., 
the  court  held  that  the  verdict  was  right.  Merriman  v.  Hundred  of 
Chippenham,  2  East,  P.  C.  709. 

The  prosecutrix  was  brought  before  a  magistrate  by  the  prisoner, 
into  whose  custody  she  had  been  delivered  by  a  headborough,  on  a 
charge  of  assault.  The  magistrate  recommended  the  case  to  be  made 
up.  The  prisoner  (who  was  not  a  peace  officer)  then  took  her  to  a 
public-house,  treated  her  very  ill,  and  finally  handcuifed  and  forced 
her  into  a  coach.  He  then  put  a  handkerchief  into  her  mouth,  and 
forcibly  took  from  her  a  shilling,  which  she  had  previously  offered 


,  ROBBERY.  1163 

him,  if  he  would  wait  till  her  husband  came.  The  prisoner  then  put 
his  liaiul  in  her  pocket,  and  took  out  three  shilling.s.  Having  been 
indicted  for  tliis  as  a  robbery,  Nares,  J.,  said,  that,  in  order  to  com- 
mit tiie  crime  of  robbery,  it  was  not  necessary  the  violence  used  to 
obtain  the  property  should  be  by  the  common  modes  of  putting  a 
pistol  to  the  head,  or  a  dagger  to  the  breast ;  that  a  violence,  though 
used  under  a  colorable  and  specious  pretence  of  law  or  of  doing 
justice,  was  sufficient,  if  the  real  intention  was  to  rob;  and  he  left  the 
case  to  the  jury,  that  if  they  thought  the  prisoner  had,  when  he  forced 
the  prosecutrix  into  the  coach,  a  felonious  intent  of  taking  her 
*money,  and  that  he  made  use  of  the  handcuffs  as  a  means  to  r^ooq 
prevent  her  making  a  resistance,  and  took  the  money  with  a  L 
felonious  intent,  they  should  find  him  p;uihy.  The  jury  havin<r  found 
accordmgly,  the  judges,  upon  a  case  reserved,  were  unanimously  of 
opinion  that,  as  it  was  found  by  the  verdict  that  the  prisoner  had  an 
original  intention  to  take  the  money,  and  had  made  use  of  violence, 
though  under  the  sanction  and  pretence  of  law,  for  the  purpose  of  ob- 
taining it,  the  offence  he  had  committed  was  clearly  a  robbery.  R.  v. 
Gascoigne,  1  Leach,  280 ;  2  East,  P.  C.  709. 

Proof  of  putting  in  fear.  If  there  has  not  been  such  violence  used 
as  to  raise  the  offence  from  that  of  simple  larceny  to  that  of  robbery, 
the  prosecutor  must  show  that  he  A^'as  put  in  fear — a  fear  of  injury 
either  to  his  person,  his  property,  or  his  reputation. 

In  order  to  show  a  putting  in  fear,  it  is  not  necessary  to  prove  that 
menaces  or  threats  of  violence  were  made  use  of  by  the  offender. 
For  instance,  under  pretence  of  begging,  the  prisoner  may  put  the 
prosecutor  in  fear.  The  law  (says  Mr.  Justice  Willes)  will  not  suffer 
its  object  to  be  evaded  by  an  ambiguity  of  expression ;  for,  if  a  man, 
animo  furandl,  says,  "  Give  me  your  money ;"  "  lend  me  your 
money  ;"  "  make  me  a  present  of  your  money  ;"  or  words  of  the  like 
import,  they  are  equivalent  to  the  most  positive  order  or  demand ; 
and  if  anything  be  obtained  in  consequence,  it  will  form  the  first 
ingredient  in  the  crime  of  robbery.  R.  v.  Donnally,  1  Leach,  193, 
ai  p.  196.  During  the  riots  in  London,  in  1780,  a  boy  with  a  cock- 
ade in  his  hat  knocked  violently  at  the  prosecutor's  door,  and  on  his 
opening  it  said,  "  God  bless  your  honor,  remember  the  poor  mob." 
The  prosecutor  told  him  to  go  along  ;  upon  which  he  said  he  would 
go  and  fetch  his  captain.  He  went,  and  soon  after  the  mob  came,  to 
the  number  of  100,  armed  with  sticks,  and  headed  by  the  prisoner  on 
horseback,  his  horse  led  by  the  boy.  The  bystanders  said,  "  You 
must  give  them  money."  The  boy  said,  "  Now  I  have  brought  my 
captain  ;"  and  some  of  tiie  mob  said,  "  God  bless  this  gentleman,  he 
is  always  generous."  The  prosecutor  asked  the  prisoner  "how  much  ;" 
and  he  answered,  "  half-a-crown  ;"  on  which  the  prosecutor,  who  had 
before  intended  to  give  only  a  shilling,  gave  the  prisoner  half-a-crown, 
and,  the  mob  giving  three  cheers,  went  to  the  next  house.  This  was 
held  to  be  robberv,  by  Nares,  J.,  and  BuUer,  J.,  at  the  Old  Bailey. 
R.  V.  Taplin,  2  East,  P.  C.  712. 


1164  ROBBERY. 

There  may  be  a  putting  in  fear  where  the  property  is  taken 
under  color  of  regular  or  legal  proceedings,  as  well  as  in  cases  where 
it  is  taken  by  actual  violence.     See  the  cases  cited  ante,  p.  DoS. 

So  there  may  be  a  putting  in  fear  where  the  robbery  is  effected 
under  color  of  a  purchase.  Thus,  if  a  person,  by  force  or  threats, 
compel  another  to  give  him  goods,  and  by  way  of  color  oblige  him  to 
take  less  than  the  value,  this  is  robbery.  As  where  the  prisoner 
took  a  bushel  and  a  half  of  wheat  worth  8s.,  and  forced  the  owner  to 
take  V>jd.  for  it,  tlireatening  to  kill  her  if  she  refused,  it  was  clearly 
held  by  all  the  judges  to  be  a  robbery.  R.  v.  Simon,  2  East,  P.  C.  712. 
Again,  where  the  prisoner  and  a  great  mob  came  to  the  prosecutor, 
who  had  some  corn,  and  one  of  them  said,  if  he  would  not  sell,  they 
were  going  to  take  it  away ;  and  the  prisoner  said  they  would  give 
him  306'.  a  load,  and  if  he  would  not  accept  that  they  would  take  the 
corn  away ;  upon  which  the  prosecutor  sold  it  for  30s.,  though  it  was 
*Qzim  *worth  38s.;  this  was  held  to  be  robbery.  E,.  v.  Spencer,  2 
•^^^-l    East,  P.  C.  712. 

In  these  cases  the  amount  of  the  money  may  raise  a  question  for 
the  jury,  whether  or  not  the  taking  was  felonious;  for  though  there 
may  be  a  putting  in  fear,  yet  if,  in  fact,  the  party  had  not  the 
animus  furaridi,  it  is  no  felony.  A  traveller  met  a  fisherman  with 
fish,  who  refused  to  sell  him  any ;  and  he  by  force  and  putting  in 
fear,  took  away  some  of  the  fish,  and  threw  him  money  much  above 
the  value  of  it.  Being  convicted  of  robbery,  judgment  was  respited, 
because  of  the  doubt  whether  the  intent  was  felonious.  The  Fisher- 
man's Case,  2  East,  P.  C.  GGl.  It  has  been  observed  that  this  was 
properly  a  question  for  the  jury  to  say  whether,  from  the  circum- 
stance of  the  party's  offering  the  full  value,  his  intention  was 
not  fraudulent,  and  consequently  not  felonious.  2  East,  P.  C.  662. 
If  the  original  taking  was  felonious  the  payment  would  make  no 
distinction. 

*  It  is  a  question  for  the  jury,  whether  the  circumstances  accom- 
panying the  commission  of  the  offence  were  such  as  reasonably  to 
create  fear  in  the  breast  of  the  party  assaulted ;  and  it  can  seldom 
happen  that  such  a  presumption  may  not  projjcrly  be  made.  It  is 
not,  says  Willes,  J.,  necessary  that  there  should  be  actual  danger,  for 
a  robbery  may  be  committed  without  using  an  offensive  weapon,  and 
by  using  a  tinder-box  or  candle-stick  instead  of  a  pistol.  A  reason- 
able fear  of  danger  caused  by  the  exercise  of  a  constructive  violence 
is  sufficient,  and  where  such  a  terror  is  impressed  upon  the  mind,  as 
does  not  leave  the  party  a  free  agent,  and  in  order  to  get  rid  of  that 
terror  he  delivers  his  money,  he  may  clearly  be  said  to  part  with  it 
against  his  will.  Nor  need  the  degree  of  constructive  violence  be 
such,  as  in  its  effects  necessarily  imports  a  probable  injury;  for  when 
a  villain  comes  and  demands  money,  no  one  knows  how  far  he  will 
go.  R.  V.  Donnaliy,  1  Leach,  193,  at  pp.  196,  197  ;  2  East,  P.  C.  715, 
at  p.  727.  The  rule,  as  deduced  from  the  last  cited  case,  is  thus  laid 
down  by  Mr.  East.  On  the  one  hand  the  fear  is  not  confined  to  an 
apprehension  of  bodily  injury,  and  on  the  other  hand,  it  must  be  of 


EOBBERY.  1165 

such  a  nature  as  in  reason  and  common  experience  is  likely  to  induce 
a  person  to  part  with  his  property  against  his  will,  and  to  put  him, 
as  it  were,  under  a  temporary  sus})ension  of  the  power  of  exercising 
it  through  the  influence  of  the  terror  impressed  ;  in  which  case  fear 
supplies,  as  well  in  sound  reason  as  in  legal  construction,  the  place  of 
force,  or  an  actual  taking  by  violence  or  assault  upon  the  person.  2 
East,  P.  C.  713 ;  Id.  727. 

In  R,  V.  Jackson,  1  East,  Preface,  Add.  xxi.  it  seems  to  have  been 
considered  that  the  fear  must  be  of  that  description  which  will  operate 
in  constantem  virum.  That  case,  however  was  one  of  a  peculiar 
nature,  and  it  certainly  cannot  be  required,  in  order  to  constitute  a 
robbery,  in  every  case,  that  the  terror  impressed  should  be  that  of 
which  a  man  of  constancy  and  courage  would  be  sensible.  See  also 
R.  V.  Walton,  L.  &  C.  298  ;  post.  tit.  "  Threats." 

Proof  of  such  circumstances  as  may  reasonably  induce  a  fear  of 
personal  injury  will  be  sufficient  to  support  the  charge  of  robbery. 
It  would  not  be  sufficient  to  show  in  answer  that  there  Avas  no  real 
danger,  as  that  the  supposed  pistol  was  in  fact  a  candlestick  ;  see 
supra  ;  in  short,  danger  to  the  person  may  be  apprehended  from  every 
assault  with  intent  to  rob,  and  a  jury  would  be  justified  in  presuming 
that  the  party  assaulted  was  under  the  influence  of  fear  with  regard 
*to  his  personal  safety.  It  seems,  also,  that  fear  of  violence  r-}:Q4-i 
to  the  person  of  the  child  of  the  party  whose  property  is  de-  L 
manded,  is  regarded  in  the  same  light  as  fear  of  violence  to  his  own 
person.  Hotham,  B.,  in  R.  v.  Donnally,  2  East,  P.  C.  718,  stated 
that  with  regard  to  the  case  put  in  argument  of  a  man  walking  Avith 
his  child,  and  delivering  his  money  to  another,  upon  a  threat  that, 
unless  he  did  so,  he  would  destroy  the  child,  he  had  no  doubt  but 
that  it  was  sufficient  to  constitute  a  robbery.  So  in  R.  v.  Reane,  2 
East,  P.  C.  735,  Eyre,  C.  J.,  observed,  that  he  saw  no  sensible  dis- 
tinction between  a  personal  violence  to  the  party  himself,  and  the  case 
put  by  one  of  the  judges,  of  a  man  holding  another's  child  over 
a  river,  and  threatening  to  throw  it  in  unless  he  gave  him  money. 

It  is  sufficient  to  prove  that  the  conduct  of  the  prisoner  put  the  prose- 
cutor in  fear  for  the  safety  of  his  property.  During  certain  riots  in 
Cornwall,  the  prisoners,  with  a  mob,  came  to  the  prosecutor's  house, 
and  said  they  must  have  from  him  the  same  they  had  had  from  his 
neighbors,  which  was  a  guinea,  else  that  they  would  tear  down  his  mow 
of  corn  and  level  his  house.  The  prosecutor  gave  them  5.s.,  but  they 
demanded  and  received  5.s.  more,  he  being  terrified.  They  then  opened 
a  cask  of  cider  and  drank  part  of  it,  ate  some  bread  and  cheese,  and 
carried  away  a  piece  of  meat.  The  prisoners  were  indicted  and  con- 
victed of  robbing  the  prosecutor  of  10s.  There  was  also  another 
count  for  putting  the  prosecutor  in  fear,  and  taking  from  him,  in  his 
dwelling-house,  a  quantity  of  cider,  etc.,  and  it  was  held  robbery  in 
the  dwelling-house.  R.  v.  Simons,  2  East,  P.  C.  731.  During  the 
Birmingham  riots  the  mob  entered  the  house,  and  the  prisoner,  who 
•was  one  of  them,  demanded  money,  and  said,  that  if  the  prosecutor 
did  not  give  his  men  something  handsome  for  them  to  drink,  his 


1166  ROBBERY. 

house  must  come  down.  The  jury  found  that  the  prosecutor  did  not 
deliver  his  money  from  any  apprehension  of  danger  to  his  Hfe 
or  person,  but  from  an  apprehension,  that  if  he  refused,  his 
house  wouki  at  some  future  time  be  pulled  down  in  the  same  man- 
ner as  other  houses  in  Birmingham.  On  a  case  reserved,  a  majority 
of  the  judges  held  this  to  be  robbery.  R.  i\  Astley,  2  East,  P.  C.  729  ; 
see  also  II.  v.  Brown,  2  East,  P.  C.  731 ;  R.  v.  Spencer,  2  East,  P. 
C.  712,  ante,  p.  940. 

The  prosecutrix,  a  servant  maid,  was  inveigled  into  a  mock  auction, 
and  tlie  door  was  shut.  There  were  about  twenty  persons  present. 
Refusing  to  bid,  she  was  told,  "  You  must  bid  before  you  obtain  your 
liberty  again."  She,  however,  again  refused,  and  at  length,  alarmed 
by  their  importunities,  she  attempted  to  leave  the  shop.  Being 
prevented,  and  conceiving  that  she  could  not  gain  her  liberty  without 
complying,  she  did  bid,  and  the  lot  was  knocked  down  to  her.  She 
again  attempted  to  go  ;  but  the  prisoner,  who  acted  as  master  of  the 
place,  stopped  her,  and  told  her,  if  she  had  not  the  money,  she  must 
pay  half  a  guinea  in  part,  and  leave  a  bundle  she  had  with  her.  The 
prisoner,  finding  she  would  not  comply,  said,  "Then  you  shall  go  to 
Bow  Street,  and  from  thence  to  Newgate,  and  be  there  imprisoned 
until  you  can  raise  the  money."  And  he  ordered  the  door  to  be 
guarded,  and  a  constable  to  be  sent  for.  A  pretended  constable 
coming  in,  the  prisoner,  who  had  kept  his  hand  on  the  girl's  shoulder, 
said,  "  Take  her,  constable,  take  her  to  Bow  Street,  and  thence  to 
Newgate."  The  pretended  constable  said,  "  Unless  you  give  me  a 
shilling,  you  must  go  with  me."  During  this  conversation,  the 
prisoner  again  laid  one  hand  on  the  girl's  shoulder,  and  the  other  on 
*Q491  *^^^^  bundle,  and  while  he  thus  held  her,  she  put  her  hand  into 
-•  her  pocket,  took  out  a  shilling,  and  gave  it  to  the  pretended 
constable,  who  said,  "  If  Knewland  (the  prisoner)  has  a  mind  to  re- 
lease you,  it  is  well ;  for  I  have  nothing  more  to  do  with  you  :"  and 
she  was  then  suffered  to  make  her  escape.  She  stated  upon  oath  that 
she  was  in  bodily  fear  of  going  to  prison,  and  that  under  that  fear  she 
parted  with  the  shilling  to  the  constable,  as  a  means  of  obtaining  her 
liberty  ;  but  that  she  was  not  impressed  by  any  fear  by  the  prisoner 
Knewland  laying  hold  of  her  shoulder  with  one  hand,  and  her  bundle 
with  the  other  ;  for  that  she  had  only  parted  with  her  money  to  avoid 
being  carried  to  Bow  Street,  and  thence  to  Newgate,  and  not  out  of 
fear  or  apprehension  of  any  other  personal  force  or  violence.  Upon 
a  case  reserved,  the  judges  were  of  opinion,  that  the  circumstances  of 
this  case  did  not  amount  to  robbery.  After  adverting  to  the  case  of 
threats  to  accuse  persons  of  unnatural  offences,  Mr.  Justice  Ashhurst, 
delivering  the  resolution  of  the  judges,  thus  proceeds  :  "  In  the  pres- 
ent case  the  threat  which  the  prisoners  made  was  to  take  the  prose- 
cutrix to  Bow  Street,  and  from  thence  to  Newgate  ;  a  species  of  threat 
which,  in  the  opinion  of  the  judges,  is  not  sufficient  to  raise  such  a 
degree  of  terror  in  the  mind  as  to  constitute  the  crime  of  robbery  ; 
for  it  was  only  a  threat  to  put  her  in  the  hands  of  the  law,  and  an 
innocent  person  need  not  in  such  circumstances  be  apprehensive  of  any 


ROBBERY.  1167 

danger.  She  might  have  known,  that  having  done  no  wrong,  the  law, 
if  she  had  been  earned  to  prison,  would  liave  taken  her  under  its  pro- 
tection, and  set  her  free.  The  terror  arising  from  such  a  source  can- 
not, therefore,  be  considered  of  a  degree  sufficient  to  induce  a  person 
to  part  with  his  money.  It  is  the  case  of  a  simple  duress,  for  which 
the  party  injured  may  have  a  civil  remedy  by  action,  which  could  not 
be,  if  the  fact  amounted  to  felony.  As  to  the  circumstances  affecting 
the  other  prisoner  (Wood,  the  pretended  constable),  it  appears  that  the 
force  wliicli  he  used  against  the  prosecutrix  was  merely  that  of  push- 
ing her  into  the  sale-room,  and  detaining  her  until  she  gave  the  shil- 
ling ;  but  as  terror  is,  no  less  than  force,  a  component  part  of  the 
complex  idea  annexed  to  the  term  robbery,  the  crime  cannot  be  com- 
plete without  it.  Tlie  judges,  therefore,  were  all  of  opinion,  that 
however  the  prisoners  might  have  been  guilty  of  a  conspiracy  or 
other  misdemeanor,  they  could  not  in  any  way  be  considered  guilty  of 
the  crime  of  robbery."  R.  v.  Knewland,  2  Leach,  721  ;  2  East,  P. 
C.  732. 

Although  this  decision,  so  far  as  the  question  of  putting  in  fear  is 
concerned,  may  perhaps  be  regarded  as  rightly  decided  upon  the  ex- 
press declaration  of  tlie  prosecutrix  herself,  that  she  parted  with  the 
money  merely  to  avoid  being  carried  to  Bow  Street,  and  thence  to 
Newgate,  yet  there  are  some  portions  of  the  opinion  of  the  judges 
which  appear  to  be  at  variance  with  the  rules  of  law  respecting  rob- 
bery. The  statement  that  terror,  no  less  than  force,  is  a  component 
part  of  the  complex  idea  annexed  to  the  term  robbery,  is  not  in  con- 
formity with  the  various  decisions  already  cited,  from  which  it 
appears  that  either  violence  or  putting  in  fear  is  sufficient  to  con- 
stitute a  robbery.  There  seems  also  to  be  a  fallacy  in  the  reasoning 
of  the  court  with  regard  to  threats  of  imprisonment  held  out  to  the 
prosecutrix.  The  impression  made  by  such  threats  upon  any  person 
of  common  experience  and  knowledge  of  the  world  (and  such  the 
prosecutrix  must  be  taken  to  have  been)  would  be,  not  that  the  pris- 
oner had  in  fact  any  intention  of  carrying  the  injured  party  before  a 
magistrate,  or  of  affording  any  such  opportunity  of  redress,  but  that 
*other  artifices  (as  in  the  instance  of  the  pretended  constable)  r*q^o 
would  probably  be  resorted  to,  in  order  to  extort  money.  It  is  L 
difficult  to  imagine  any  case  in  which  a  party  might  with  more  reason 
apprehend  violence  and  injury,  both  to  the  person  and  to  the  property, 
than  that  in  which  the  prosecutrix  was  placed,  and  it  is  still  more 
difficult  to  say,  that  there  was  not  such  violence  resorted  to,  as, 
independently  of  the  question  of  putting  in  fear,  rendered  the  act 
of  the  prisoners  (supposing  it  to  have  been  done  animo  furandi,  of 
which  there  could  be  little  doubt)  an  act  of  robbery.  In  R.  v.  Gas- 
coigne,  1  Leach,  280  ;  2  East,  P.  C.  709,  ante,  p.  939,  the  prisoner 
not  only  threatened  to  carry  the  prosecutrix  to  prison,  but  actually 
did  carry  her  thither,  whence  she  was  in  due  course  discharged,  and 
yet  the  nature  of  the  threat  did  not  prevent  the  offence  from  being 
considered  a  robbery.  In  that  case,  indeed,  some  greater  degree  of 
personal   violence   was   used,  and   the   money  was   taken   from  the 


1168  ROBBERY.       . 

prosecutrix's  pocket  by  the  prisoner  himself;  but  it  is  clearly  im- 
material whetlier  the  offender  takes  the  money  with  his  own  hand, 
or  whether  the  party  injured  delivers  it  to  him,  in  consequence  of  his 
menaces. 

Proof  of  the  putting  in  fear — by  threatening  to  accuse  of  un- 
natural crimes.  There  is  one  case  about  which  there  is  considerable 
doubt  as  to  whether  or  no  it  amounts  to  robbery.  In  ordinaiy  cases, 
as  has  already  been  seen,  obtaining  money  by  threats  affecting  a  party's 
reputation  has  not  been  held  to  amount  to  robbery  ;  but  the  doubt  has 
been  where  the  threat  is  to  accuse  of  unnatural  practices.  The  species 
of  terror,  says  Mr.  Justice  Ashhurst,  which  leads  a  man  to  apprehend 
an  injury  to  his  character,  has  never  been  deemed  sufficient,  unless,  in 
the  particular  case  of  exciting  it  by  means  of  insinuations  against,  or 
threats  to  destroy,  the  character  of  the  party  pillaged,  by  accusing  him 
of  sodomitical  practices.  R.  v.  Knewland,  2  Leach,  730.  The  rule 
is  laid  down  in  the  same  case,  in  rather  larger  terms,  by  Mr.  Justice 
Heath,  who  says,  "The  cases  alluded  to  (R.  v.  Donnally,  and  R,.  v. 
Hickman,  inji'd)  only  go  thus  far — that  to  obtain  money  from  a  per- 
son by  accusing  him  of  that  which,  if  proved,  would  carry  with  it  an 
infamous  punishment,  is  sufficient  to  support  an  indictment  for  robbery ; 
but  it  has  never  been  decided  that  a  mere  charge  of  imprisonment  and 
extortion  is  sufficient."     2  Leach,  729. 

That  obtaining  money  from  a  man  by  threatening  to  accuse  him  of 
unnatural  practices  amounts  to  a  robbery,  was  decided  in  R.  v.  Jones. 
The  prisoner,  drinking  with  the  prosecutor  at  a  public-house,  asked 
him  what  he  meant  by  the  liberties  he  had  taken  with  his  person  at 
the  play-house.  The  prosecutor  replied  that  he  knew  of  no  liberties 
having  been  taken  ;  upon  which  the  prisoner  said,  "  Damn  you,  sir, 
but  you  did,  and  there  were  several  reputable  merchants  in  the  house 
who  will  take  their  oaths  of  it."  The  prosecutor,  being  alarmed,  left 
the  house  ;  but  the  prisoner  following  him,  cried  out,  "  Damn  you, 
sir,  stop,  for  if  you  offer  to  run,  I  will  raise  a  mob  about  you ;"  and 
seizing  him  by  the  collar,  continued,  "  Damn  you,  sir,  this  is  not  to 
be  borne;  you  have  offered  an  indignity  to  me,  and  nothing  can 
satisfy  it."  The  prosecutor  said,  "  for  God's  sake,  what  would  you 
have  ?"  To  which  the  prisoner  answered,  "  A  present ;  you  must 
make  me  a  present."  And  the  prosecutor  gave  him  three  guineas 
and  twelve  shillings.  The  prisoner,  during  the  whole  conversation, 
held  the  prosecutor  by  the  arm.  The  prosecutor  swore,  that  at  the 
*qj.i1  *time  he  parted  with  the  money,  he  understood  the  threatened 
-'  charge  to  be  an  imputation  of  sodomy  ;  that  he  was  so  alarmed 
at  the  idea,  that  he  had  neither  courage  nor  strength  to  call  for  assist- 
ance ;  and  that  the  violence  with  which  the  prisoner  had  detained  him 
in  the  street,  had  put  him  in  fear  for  the  safety  of  his  person.  Upon 
a  case  reserved,  the  judges  (absent  De  Grey,  C.  J.,  and  Ashhurst,  J., 
and  one  vacancy)  were  of  opinion,  that  although  the  money  had  been 
obtained  in  a  fraudulent  way,  and  under  a  false  pretence,  yet  that  it 
was  a  pretence  of  a  very  alarming  nature,  and  that  a  sufficient  degree 


ROBBERY.  ^         1169 

of  force  had  been  made  use  of  in  eiFecting  it  to  constitute  the  offence 
of  robbery.  According  to  the  report  of  the  same  case  by  Mr.  East, 
their  lordships  said,  that  to  constitute  robbery  tliere  Avas  no  occasion 
to  use  weapons  or  real  violence,  but  that  taking  money  from  a  man  in 
such  a  situation  as  rendered  him  not  a  free  man,  as  if  a  person  so 
robbed  was  in  fear  of  a  conspiracy  against  his  life  or  character,  was  such 
a  putting  in  fear  as  would  make  the  taking  of  his  money  under  that 
terror,  robbery  ;  and  thev  referred  to  R.  v.  Brown,  O.  B.  1763  ;  R.  v. 
Jones,  1  Leach,  139 ;  2  East,  P.  C.  714. 

In  the  above  case  it  does  not  clearly  appear,  whether  the  judo-es 
held  it  to  be  robbery  on  the  ground  of  the  actual  violence  offered  to 
the  prosecutor  in  detaining  him  in  the  street  by  the  arm,  or  upon 
the  prosecutor  being  put  in  fear  of  an  injury  to  his  reputation  by  the 
menaces  employed.  However,  in  subsequent  cases  it  has  been  held, 
that  it  is  no  less  robbery  where  no  personal  violence  whatever  has 
been  used. 

The  prosecutor,  passing  along  the  street,  was  accosted  by  the  pris- 
oner, who  desired  he  would  give  him  a  present.  The  prosecutor  ask- 
ing, for  what  ?  the  prisoner  said,  "  You  had  better  comply,  or  I  will 
take  you  before  a  magistrate,  and  accuse  you  of  an  attempt  to  commit 
an  unnatural  crime."  The  prosecutor  then  gave  him  half  a  guinea. 
Two  days  afterwards,  the  prisoner  obtained  a  further  sum  of  money 
from  the  prosecutor  by  similar  threats.  The  prosecutor  swore  that  he 
was  exceedingly  alarmed  upon  both  occasions,  and  under  that  alarm 
gave  the  money ;  that  he  was  not  aware  what  were  the  consequences 
of  such  a  charge ;  but  apprehended  that  it  might  cost  him  his  life. 
The  jury  found  the  prisoner  guilty  of  the  robbery,  and  that  the  pros- 
ecutor delivered  his  money  through  fear,  and  under  an  apprehension 
that  his  life  was  in  danger.  The  case  being  reserved  for  the  opinion 
of  the  judges,  they  gave  their  opinions  sena^im  (see  2  East,  P.  C.  716), 
and  afterwards  the  result  of  their  deliberations  was  delivered  by  Mr. 
Justice  Willes.  They  unanimously  resolved,  that  the  prisoner  was 
rightly  convicted  of  robbery.  This,  says  Mr.  Justice  Willes,  is  a 
threat  of  personal  violence ;  for  the  prosecutor  had  every  reason  to 
believe  that  he  should  be  dragged  through  the  streets  as  a  culprit, 
charged  with  an  unnatural  crime.  The  threat  must  necessarily  and 
unavoidably  create  intimidation.  It  is  equivalent  to  actual  violence, 
for  no  violence  that  can  be  offered  could  excite  a  greater  terror  in  the 
mind,  or  make  a  man  sooner  part  with  his  money.  R.  v.  Donnally,  1 
Leach,  193;  2  East,  P.  C.  713. 

It  will  be  observed,  that  in  the  foregoing  case  the  jury  found  that 
the  prosecutor  delivered  the  money  under  an  apprehension  that  his  life 
was  in  danger ;  but  this  circumstance  was  wanting  in  the  following 
case,  where  the  only  fear  was  that  of  an  injury  to  the  party's  reputa- 
tion : 

The   prosecutor  was   employed   in   St.   James's   Palace,   and  the 
*prisoner  was  sentinel  on  guard  there.     One  night  the  prosecu-  r  ♦qj^k 
tor  treated  the  prisoner  with  something  to  eat  in  his  room.  ^ 
About  a  fortnight    afterwards  the  prisoner    followed   the  prosecu- 
74 


1170  ROBBERY. 

tor  up-stairs,  and  said,  "  I  am  come  for  satisfaction ;  you  know 
what  passed  the  other  night.  You  are  a  sodomite ;  and  if  you  do  not 
give  me  satisfaction,  I  will  go  and  fetch  a  sergeant  and  a  file  of 
men,  and  take  you  before  a  justice,  for  I  have  been  in  the  black 
hole  ever  since  I  was  here  last,  and  I  do  not  value  my  life." 
The  prosecutor  asked  him  what  money  he  must  have,  and  he  said 
three  or  four  guineas,  and  the  prosecutor  gave  him  two  guineas. 
The  prisoner  took  them,  saying,  "Mind,  I  don't  demand  any- 
thing of  you."  The  prosecutor  swore  that  he  was  very  much 
alarmed  when  he  gave  the  two  guineas,  and  that  he  did  not  very 
well  know  what  he  did ;  but  that  he  parted  with  the  money 
under  an  idea  of  preserving  his  character  from  reproach,  and  not 
from  the  fear  of  personal  violence.  The  jury  found  the  prisoner 
guilty  of  the  robbery,  and  they  also  found  that  the  prosecutor  parted 
with  the  money  against  his  will,  through  a  fear  that  his  character 
might  receive  an  injury  from  the  prisoner's  accusation.  The  case 
being  only  the  second  of  the  kind  (sed  vide  R.  v.  Jones,  ante,  p.  944), 
and  some  doubt  having  prevailed  with  regard  to  R.  v.  Donnally, 
because  he  had  not  been  executed,  and  because  this  case  differed  with 
regard  to  the  nature  of  the /ear,  it  was  reserved  for  the  opinion  of  the 
judges.  Their  resolution  was  delivered  by  Mr.  Justice  Ashhurst,  who 
said,  that  the  case  did  not  materially  differ  from  that  of  R.  v.  Donnally, 
for  that  the  true  definition  of  robbery  is,  the  stealing  or  taking  from 
the  person,  or  in  the  presence  of  another,  property  to  any  amount, 
with  such  a  degree  of  force  or  terror  as  to  induce  the  party  unwill- 
ingly to  part  with  his  property ;  and  whether  the  terror  arises  from 
real  or  expected  violence  to  the  person,  or  from  a  sense  of  injury  to 
the  character,  the  law  makes  no  kind  of  difference ;  for  to  most  men 
the  idea  of  losing  their  fame  and  reputation  is  equally  (if  not  more) 
terrific  with  the  dread  of  personal  injury.  The  principal  ingredient 
in  robbery  is  the  being  forced  to  part  with  property  ;  and  the  judges 
were  unanimously  of  opinion,  that  upon  the  principles  of  law,  and 
the  authority  of  former  decisions,  a  threat  to  accuse  a  man  of  having 
committed  the  greatest  of  all  crimes,  was  a  sufficient  force  to  con- 
stitute the  crime  of  robbery  by  putting  in  fear.  R.  v.  Hickman, 
1  Leach,  278  ;  2  East,  P.  C.  728. 

This  decision  has  since  been  followed.  The  prisoner  came  up  to 
the  prosecutor,  a  gentleman's  servant,  at  his  master's  door,  and 
demanded  bl.  On  being  told  by  the  prosecutor  that  he  had  not  so 
much  money,  he  demanded  1/.,  and  said,  that  if  the  prosecutor  did  not 
instantly  give  it  to  him,  he  would  go  to  his  master,  and  accuse  him 
of  wanting  to  take  diabolical  liberties  with  him.  The  prosecutor  gave 
him  what  money  he  had,  and  the  prisoner  demanded  his  watch,  or 
some  of  his  master's  plate.  This  the  prosecutor  refused ;  but  went 
and  fetched  one  of  his  coats,  which  the  prisoner  took  away.  He  was 
indicted  for  robbing  the  prosecutor  of  his  coat.  The  prosecutor 
swore  that  he  gave  the  prisoner  his  property  under  the  idea  of  his 
being  charged  with  a  detestable  crime,  and  for  fear  of  losing  both  his 


ROBBERY.  1171 

character  and  his  place.  He  stated  that  he  was  not  afraid  of  being 
taken  into  custody,  nor  had  he  any  dread  of  punishment.  He  stated, 
also,  that  he  was  absent,  fetching  the  coat  for  five  minutes ;  that  the 
servants  were  in  the  kitchen,  but  he  did  not  consult  them,  on  account 
*of  his  agitation,  and  because  he  had  not  a  minute  to  spare,  ex-  r^QAn 
pecting  the  company  to  dinner  immediately.  On  a  case  re-  L 
served,  eleven  of  the  judges  thought  the  case  similar  to  R.  v.  Hickman 
(supra),  and  that  they  could  not,  with  propriety,  depart  from  that 
decision ;  Graham,  B.,  thought  that  R.  v,  Hickman  was  not  rightly 
decided,  but  said  that  he  should  on  this  point  be  influenced  in  future 
by  what  appeared  to  be  the  general  opinion  of  the  judges.  R.  v.  Eger- 
ton,  Russ.  &.  Ry.  375. 

Upon  a  threat  of  accusing  the  prosecutor  of  unnatural  practices, 
he  promised  to  provide  a  sum  of  money  for  the  prisoners,  which  he 
failed  to  do,  upon  which  they  said  they  were  come  from  Bow-street, 
and  would  take  him  into  custody.  They  accordingly  called  a  coach, 
and  while  on  their  road  to  Bow-street,  one  of  the  prisoners  stopped 
the  coach,  and  said  that  if  the  prosecutor  would  behave  like  a  gentle- 
man, and  procure  the  money,  they  would  not  prefer  the  charge.  The 
prosecutor  then  went  to  the  house  of  a  friend,  where  he  was  absent 
about  five  minutes,  when  he  returned  with  10/.,  which  he  gave  to  the 
prisoners.  He  stated  that  he  parted  with  his  money  in  the  fear  and 
dread  of  being  placed  in  the  situation  of  a  criminal  of  that  nature, 
had  they  persisted  in  preferring  the  charge  against  him  ;  that  he  did 
not  conceive  they  were  Bow-street  officers,  though  ,they  held  out  the 
threat ;  that  he  was  extremely  agitated,  and  thought  that  they  would 
have  taken  him  to  the  watch-house,  .and  under  that  idea,  and  the 
impulse  of  the  moment,  he  parted  with  the  money.  He  stated,  also, 
that  he  could  not  say  that  he  gave  his  money  under  any  apprehension 
of  danger  to  his  person.  Ten  of  the  judges  were  of  opinion  that  the 
calling  of  the  coach,  and  getting  in  with  the  prosecutor,  was  a  forcible 
constraint  upon  him,  and  sufficient  to  constitute  a  robbery,  though 
the  prosecutor  had  no  apprehension  of  further  injury  to  his  person. 
Lord  Ellenborough,  Macdonald,  C.  B.,  Lawrence,  J.,  Chambers,  J., 
and  Graham,  B.,  thought  some  degree  of  force  or  violence  essential, 
and  that  the  mere  apprehension  of  danger  to  the  character  would  not 
be  sufficient  to  constitute  this  offence.  Heath,  J.,  Grose,  J.,  Thomp- 
son, B.,  Le  Blanc,  J.,  and  Wood,  B.,  seemed  to  think  it  would.  R. 
1?.  Cannon,  Russ.  &  Ry.  146. 

The  threat  in  these  cases  must,  of  course,  be  a  threat  to  accuse  the 
party  robbed  ;  it  is  not  sufficient  to  constitute  a  robbery  that  the 
threat  is  to  accuse  another  person,  however  nearly  connected  with  the 
party  from  whom  the  property  is  obtained.  The  prisoner  was  indicted 
for  robbing  the  wife  of  P.  Abraham.  It  appeared  that  under  a  threat 
of  accusing  Abraham  of  an  indecent  assault,  the  money  had  been 
obtained  by  the  prisoner  from  Abraham's  wife.  Littledale,  J.,  said, 
"I  think  this  is  not  such  a  personal  fear  in  the  wife,  as  is  necessary 
to  constitute  the  crime  of  robbery.  If  I  were  to  hold  this  a  robbery, 
it  would  be  going  beyond  any  of  the  decided  cases  j"  and  his  lord- 


1172  ROBBERY. 

ship  directed  an  acquittal.  He  said  tliat  the  case  was  new  and  per- 
plexing. He  thought  it  was  rather  a  misdemeanor  ;  and  even  as  a 
misdemeanor  the  ease  was  new.  The  princij)le  was,  that  the  person 
threatened  is  thrown  off  his  guard,  and  has  not  finnness  to  resist  the 
extortion ;  but  he  could  not  aj)ply  that  principle  to  the  wife  of"  the 
party  threatened.  R.  v.  Edward,  1  Moo.  &  R.  257  ;  5  C.  &  P.  518, 
24  E.  C.  L. 

The  prisoner  Avent  twice  to  the  house  where  the  prosecutor  lived 
in  service,  and  called  him  a  sodomite.  The  prosecutor  took  him 
each  time  before  a  magistrate,  who  discharged  him.  On  being 
discharged,  the  prisoner  followed  the  prosecutor,  repeated  the 
*Q-i7i  *cxpressions,  and  asked  him  to  make  him  a  present,  saying  he 
-I  would  never  leave  him  till  he  had  pulled  the  house  down  ;  but  if 
he  did  make  him  a  handsome  present,  he  would  trouble  him  no  more. 
He  mentioned  four  guineas,  and  the  prosecutor  being  frightened  for 
his  reputation,  and  in  fear  of  losing  his  situation,  gave  him  the  money. 
He  gave  the  money  from  the  great  apprehension  and  fear  he  had  of 
losing  his  situation.  The  prisoner  was  convicted  ;  but  a  doubt  arising 
in  tlie  privy  council,  the  opinion  of  the  judges  was  taken.  Most  of 
them  thought  that  this  was  within  R.  v.  Hickman,  and  nine  were  of 
opinion  that  that  case  was  law,  but  the  three  others  thought  it  not  law. 
Lord  Ellenborough  thought  that  the  prosecutor's  principal  inducement 
to  part  with  his  money  was  the  fear  of  the  loss  of  his  place,  and  he 
said  he  should  feel  no  difficulty  in  recommending  a  pardon ;  and  the 
prisoner  did,  in  the  end,  receive  a  pardon.  R.  v.  Elmstead,  2  Russ. 
Cri.  108,  5th  ed. 

In  these,  as  in  other  cases  of  robbery,  it  was  always  held  that  it 
must  appear  that  the  property  was  delivered  or  the  money  extorted, 
while  the  party  was  under  the  influence  of  the  fear  arising  from  the 
threats  or  violence  of  the  prisoner.  The  prosecutor  had  been  several 
times  solicited  for  money  by  the  prisoner,  under  threats  of  accusing 
him  of  unnatural  practices.  At  one  of  those  interviews  the  prisoner 
said  he  must  have  20/.  in  cash,  and  a  bond  for  50/.  a  year ;  upon 
w^hich  the  prosecutor,  in  pursuance  of  a  plan  he  had  previously  con- 
certed with  a  friend,  told  him  that  he  could  not  give  tliem  to  him 
then,  but  that  if  he  would  wait  a  few  days  he  would  bring  him  the 
money  and  bond.  At  their  next  interview  the  prosecutor  offered  the 
prisoner  20/.,  but  he  refused  to  take  it  without  the  bond,  upon  which 
the  prosecutor  fetched  it,  and  gave  it  with  nineteen  guineas  and  a  shil- 
ling to  the  prisoner,  who  took  them  away,  saying,  he  would  not  give 
the  prosecutor  any  further  trouble.  The  prosecutor  deposed,  tli^t 
when  the  charge  was  first  made  his  mind  was  extremely  alarmed,  and 
that  he  apprehended  injury  to  his  person  and  character,  but  that  his 
fear  soon  subsided,  and  that  he  sought  the  several  intervicAvs  Avith  the 
prisoner  with  the  purpose  of  parting  with  his  property  to  him,  in 
order  to  fix  him  Avith  the  crime  of  robbery,  and  to  substantiate  the 
fact  of  his  having  extorted  money  from  him  by  means  of  the  charge; 
but  that  at  the  time  the  prisoner  demanded  from  him  the  money  and 
the  boud,  he  parted  Avith  them  Avithout  being  under  any  apprehension, 


ROBBERY.  1173 

either  of  violence  to  his  person  or  injury  to  his  character,  although  he 
could  not  say  that  he  parted  with  his  property  voluntarily.  The 
judi^cs  having  met  to  consider  this  case,  were  inclined  to  be  of  opinion 
.  that  it  was  no  robbery,  there  being  no  violence  nor  fear  at  the  time 
wheti  the  prosecutor  parted  with  his  money.  Eyre,  C.  J.,  observed, 
that  it  would  be  going  a  step  further  than  any  of  the  cases,  to  hold 
this  to  be  robbery.  The  principle  of  robbery  was  violence ;  where 
the  money  was  delivered  through  fear,  that  was  constructive  violence. 
That  the  principle  he  had  acted  upon  in  such  cases  was  to  leave  the 
question  to  the  jury  whether  the  defendant  had,  by  certain  circum- 
stances, impressed  such  a  terror  on  the  i)rosecutor  as  to  render  him  in- 
capable of  resisting  the  demand.  Tlierefore,  where  the  prosecutor 
swore  that  he  was  under  no  apprehension  at  the  time,  but  gave  his 
money  only  to  convict  the  prisoner,  he  negatived  the  robbery.  That 
this  was  ditferent  from  R.  v.  Norden,  Foster,  129,  where  there  was 
actual  violence  ;  but  here  there  was  neither  actual  nor  constructive 
violence.  At  a  subsequent  meeting  of  the  *judges  the  conviction  r*q4Q 
was  held  wrong.  R.  v.  Reane,  2  Leach,  616;  2  East,  P.  C.  •- 
734.  The  same  point  was  ruled  in  R.  v.  Fuller,  Russ.  &  Ry.  408, 
where  the  prosecutor  made  an  appointment  to  meet  the  prisoner,  and 
in  the  meantime  procured  a  constable  to  attend,  who,  as  soon  as  the 
prisoner  received  the  money,  apprehended  him.  The  prosecutor 
stated  that  he  parted  with  the  money  in  order  that  he  might  prosecute 
the  prisoner. 

Under  the  circumstances  of  the  following  case,  it  appears  to  have 
been  held  that  the  fear  was  not  continuing  at  the  time  of  the  delivery 
of  the  money,  and  that  therefore  it  was  no  robbery  :  In  consequence 
of  a  charge  similar  to  that  in  the  above  cases  having  been  made,  the 
prosecutor  procured  a  sum  of  money  to  comply  with  the  demand,  and 
prevailed  upon  a  friend  to  accompany  him  when  he  went  to  pay  it. 
His  friend  (Shelton)  advised  him  not  to  pay  it,  but  he  did  pay  it. 
He  swore  that  he  was  scared  at  the  charge,  and  that  was  the  reason 
why  he  parted  with  his  money.  It  appeared  that  after  the  charge  was 
first  made,  the  prosecutor  and  one  of  the  prisoners  continued  eating 
and  drinking  together.  Shelton  confirmed  the  prosecutor's  account, 
and  said  he  appeared  quite  scared  out  of  his  wits.  The  judges  having 
met  to  consider  this  case,  a  majority  of  them  were  of  opinion  that  it 
■was  not  robbery,  though  the  money  was  taken  in  the  presence  of  the 
prosecutor,  and  the  fear  of  losing  his  character  was  upon  him  at  the 
time.  Most  of  the  majority  thought  that,  in  order  to  constitute  rob- 
bery, the  money  must  be  parted  with  from  an  immediate  apprehension 
of  present  danger  upon  the  charge  being  made,  and  not,  as  in  this  case, 
after  the  parties  had  separated,  and  the  prosecutor  had  time  to  de- 
liberate upon  it,  and  apply  for  assistance,  and  had  applied  to  a  friend, 
by  whom  he  was  advised  not  to  pay  it ;  and  who  was  actually 
present  at  the  very  time  when  it  was  paid ;  all  which  carried  the 
appearance  more  of  a  composition  of  a  prosecution  than  it  did  of  a 
robbery  and  seemed  more  like  a  calculation  whether  it  were  better  to 
lose  his  money  or  risk  his  character.     One  of  the  judges,  who  agreed 


1174  ROBBERY. 

that  it  was  not  robbery,  went  npon  the  ground  that  there  was  not  a 
continuing  fear,  such  as  could  operate  in  constantem  virum,  from  the 
time  when  the  money  was  demanded  till  it  was  paid  ;  for  in  the  inter- 
val he  could  have  procured  assistance,  and  had  taken  advice.  The 
minority,  who  held  the  case  to  be  robbery,  thought  the  question  con- 
cluded by  the  finding  of  the  jury  that  the  prosecutor  had  parted  with 
his  money  through  fear  continuing  at  the  time,  which  fell  in  with  the 
definition  of  robbery  long  ago  adopted  and  acted  upon,  and  they  said 
it  would  be  difficult  to  draw  any  other  line ;  and  that  this  sort  of  fear 
so  far  differed  from  cases  of  mere  bodily  fear,  that  it  was  not  likely  to 
be  dispelled,  as  in  those  cases,  by  having  the  opportunity  of  applying 
to  magistrates  or  others  for  their  assistance,  for  the  money  was  given 
to  prevent  the  public  disclosure  of  the  charge.  R.  v.  Jackson,  1  East, 
P.  C.  Addenda  xxi. ;  2  Russ.  Cri.  106-108,  5th  ed. 

So  much  doubt  was  entertained  as  to  the  law  on  this  subject,  that 
a  statutory  provision  was  made  on  the  subject,  which  makes  it  an 
offence  to  extort  money  by  such  means.  The  first  statute  was  the 
7  &  8  Geo.  4,  c.  29 ;  that  now  in  force  is  the  24  &  25  Vict.  c.  96,  ss. 
46  and  47,  infra,  tit.  "  Threats." 

Semble  that  now,  where  money  is  obtained  by  any  of  the  threats 
to  accuse  specified  in  that  section,  the  indictment  must  be  on  the 
statute.  See  R.  v.  Henry,  2  Moo.  C.  C.  R.  118.  But  Avhere  the 
*94Q1  *^o"^y  ^^  obtained  by  threats  to  accuse  other  than  those  specified 
-I  in  the  Act,  the  indictment  may  be  for  robbery,  if  the  party  was 
put  in  fear  and  parted  with  his  property  in  consequence.  R.  v,  Nor- 
ton, 8  C  &  P.  671,  34  E.  C.  L.  In  a  note  to  this  case  the  recorder 
is  stated  to  have  mentioned  it  to  Parke,  B.,  who  concurred  in  the  above 
opinion.  2  Russ.  Cri.  114,  5th  ed.  (n).  It  was  held  on  a  case  re- 
served, that  since  the  repealed  statute,  7  Will.  4  &  1  Vict.  c.  87,  s.  4, 
which  is  similar  to  the  24  &  25  Vict.  c.  96,  s.  47,  infra,  tit.  "  Threats," 
an  indictment  in  the  ordinary  form  for  robbery  cannot  be  supported  by 
proof  of  extorting  money  by  threats  of  charging  an  infamous  crime, 
and  that  a  person  present  to  aid  A.  B.  to  extort  money  by  such  charges, 
cannot  be  convicted  of  robbery  with  A.  B.,  effected  by  him  with  actual 
violence,  the  prisoner  being  no  party  to  such  violence.  R.  v.  Henry, 
2  Moo.  C.  C.  118  ;  9  C.  &  P.  309.  But  it  has  since  been  decided, 
that  assaulting  and  threatening  to  charge  with  an  infamous  crime  (but 
in  terms  not  within  the  above  section),  with  intent  thereby  to  extort 
money,  was  an  assault  with  intent  to  rob.  R.  v.  Stringer,  2  Moo.  C. 
C.  361  ;  1  C.  &  K.  188,  47  E.  C.  L.  In  this  latter  case  the  judges 
doubted  whether  R.  v.  Henry  was  rightly  decided,  on  the  ground  on 
which  it  was  decided,  viz.,  that  it  was  not  robbery  to  obtain  money  by 
threat  of  a  charge  of  sodomy. 

It  is  no  defence  to  a  charge  of  robbery  by  threatening  to  accuse  a 
man  of  an  unnatural  crime,  that  he  has  in  fact  been  guilty  of  such 
crime.  Where  the  prisoner  set  up  that  defence,  and  stated  that  the 
prosecutor  had  voluntarily  given  him  the  money  not  to  prosecute  him 
for  it ;  Littledale,  J.,  said,  that  it  was  equally  a  robbery  to  obtain  a 
man's  money  by  a  threat  to  accuse  him  of  an  infamous  crime,  wliether 


ROBBERY.  1175 

the  prosecutor  was  really  guilty  or  not ;  as  if  he  was  guilty,  the  pris- 
oner ought  to  have  prosecuted  him  for  it,  and  not  to  have  extorted 
money  from  him ;  but  if  the  money  was  given  voluntarily,  without 
any  previous  tlireat,  the  indictment  could  not  be  supported.  Tlie  jury 
acquitted  the  prisoner.  R.  v.  Gardner,  1  C.  &  P.  479,  12  E.  C.  L. 
See  also  j>ost,  tit.  "  Threats." 

Proof  of  the  putting  in  fear — must  be  before  the  taking.  It 
must  appear  that  the  property  was  taken  while  the  party  was  under 
the  influence  of  the  fear  ;  for  if  the  property  be  taken  first,  and  the 
menaces  or  threats  inducing  the  fear  be  used  afterwards,  it  is  not  rob- 
bery. The  prisoner  desired  the  prosecutor  to  open  a  gate  for  him. 
While  he  was  so  doing,  the  prisoner  took  his  purse.  The  prosecutor 
seeing  it  in  the  prisoner's  hand  demanded  it,  when  the  prisoner 
answered,  "Villain,  if  thou  speakest  of  this  purse,  I  will  pluck  thy 
house  over  thy  ears,"  etc.,  and  then  went  away  ;  and  because  he  did 
not  take  it  with  violence,  or  put  the  prosecutor  in  fear,  it  was  ruled 
to  be  larceny  only,  and  no  robbery,  for  the  words  of  menace  were  used 
after  the  taking  of  the  purse.  R.  v.  Harman,  1  Hale,  P.  C.  534 ;  1 
Leach,  198  (n). 


1176  SACRILEGE. 


^950] 


♦SACRILEGE. 


Breaking  and  entering  place  of  worship  and  committing  a 
felony.  By  the  24  &  25  Vict.  c.  96,  s.  50,  "  whosoever  shall  break 
and  enter  any  church,  chapel,  meeting-house,  or  other  place  of  divine 
worship,  and  commit  any  felony  therein,  or  being  in  any  church, 
chapel,  meeting-house,  or  other  place  of  divine  worship  shall  commit 
any  felony  therein  and  break  out  of  the  same,  shall  be  guilty  of  felony, 
and  being  convicted  thereof  shall  be  liable,  at  the  discretion  of  the 
court,  to  be  kept  in  penal  servitude  for  life,  or  for  any  term  not  less 
than  three  [now  five]  years,  or  to  be  imprisoned  for  any  term  not  ex- 
ceeding two  years,  with  or  without  hard  labor,  and  with  or  without 
solitary  confinement." 

Breaking  and  entering  a  place  of  worship  with  intent  to  com- 
mit felony.     See  24  &  25  Vict.  c.    96,  s.  57,  mpra,  p.  453. 

Riotously  demolishing  or  injuring  place  of  worship.  See  24  & 
25  Vict.  c.  97,  ss.  11  &  12,  supra,  p.  924. 

Proof  that  the  building  is  a  church  or  chapel.  It  must  appear 
that  the  building  in  which  the  oifence  was  committed  was  a  church  or 
chapel.  Where  the  goods  stolen  had  been  deposited  in  the  church- 
tower,  which  had  a  separate  roof,  but  no  outer  door,  the  only  way  of 
going  to  it  being  through  the  body  of  the  church,  from  which  the  tower 
was  not  separated  by  a  door  or  partition  of  any  kind ;  Park,  J.,  was 
of  opinion,  that  this  tower  was  to  be  taken  as  a  part  of  the  church. 
R,  V.  Wheeler,  3  C.  &  P.  585,  14  E.  C.  L. 

The  vestry  of  a  parish  church  was  broken  open  and  robbed.  It 
was  formed  out  of  what  before  had  been  the  church-porch  ;  but  had  a 
door  opening  into  the  churchyard,  which  could  only  be  unlocked  from 
the  inside.  It  was  held  by  Coleridge,  J.,  that  this  vestry  was  part 
of  the  fabric  of  the  church,  and  within  the  Act.  R.  v.  Evans,  Carr. 
&  M.  298,  41  E.  C.  L. 

Property  how  laid  in  the  indictment.  In  P.  v.  AVortley,  1  Den. 
C.  C.  R.  162,  the  prisoner  was  indicted  for  breaking  into  a  church 
and  stealing  a  box  and  money.  The  box  was  a  very  ancient  box, 
firmly  fixed  by  two  screws  at  the  back  to  the  outside  of  a  pew  in  the 
centre  aisle  of  the  church,  and  by  a  third  screw  at  the  bottom,  to  a 
supporter  beneath,  and  over  the  box  was  an  ancient  board,  with  the 
inscription  painted  thereon,  "  Remember  the  poor."  The  court 
"  thought  that  the  box  might  be  presumed,  in  the  absence  of  any 
contrary  evidence,  to  have  been  placed  in  the  church  pursuant  to  the 


SACRILEGE.  1177 


canon  ;  Burn's  Eccl.  Law,  369,  tit.  'Church  ' ;  and  that  the  money 
♦therein  placed  was  constructively  in  the  possession  of  the  vicar  r*95- 
and  churchwardens." 

Frequently  the  property  is  laid  in  the  parishioners ;  sometimes  in 
the  rector  alone,  and  sometimes  in  the  churchwardens  alone.  See  1 
Hale,  P.  C.  51,  81  ;  2  East,  P.  C.  681.  In  a  private  chapel  the  prop- 
erty ought  perhaps  to  be  laid  in  the  private  owner. 


1178         SEA  AND  RIVER  BANKS,   PONDS,   MILL-DAMS,   ETC. 


*952]        *SEA  AND  RIVER  BANKS,  PONDS,  MILL-DAMS,  ETC. 

Damaging  sea  and  river  banks  and  works  belonging  to  ports, 
harbors,  etc.  By  the  24  &  25  Vict.  c.  97,  s.  30,  "  wliosoever  shall 
unlawfully  and  maliciously  break  down,  or  cut  down,  or  otherwise 
damage  or  destroy  any  sea  bank  or  sea  wall,  or  the  bank,  dam,  or  wall 
of  or  belonging  to  any  river,  canal,  drain,  reservoir,  pool,  or  marsh, 
whereby  any  land  or  building  shall  be,  or  shall  be  in  danger  of  being, 
overflowed  or  damaged,  or  shall  unlawfully  and  maliciously  throw, 
break,  or  cut  down,  level,  undermine,  or  otherwise  destroy  any  quay, 
wharf,  jetty,  lock,  sluice,  floodgate,  weir,  tunnel,  towing-path,  drain, 
watercourse,  or  other  work  belonging  to  any  port,  harbor,  dock,  or 
reservoir,  or  on  or  belonging  to  any  navigable  river  or  canal,  shall  be 
guilty  of  felony,  and  being  convicted  thereof  shall  be  liable,  at  the 
discretion  of  the  court,  to  be  kept  in  penal  servitude  for  life,  or  for 
any  term  not  less  than  three  [now  five]  years, — or  to  be  imprisoned 
for  any  term  not  exceeding  two  years,  with  or  without  hard  labor,  and 
with  or  without  solitary  confinement ;  and  if  a  male  under  the  age  of 
sixteen  years,  with  or  without  whipping." 

By  s.  31,  "  whosoever  shall  unlawfully  and  maliciously  cut  oif, 
draw  up,  or  remove  any  piles,  chalk,  or  other  materials  fixed  in  the 
ground,  and  used  for  securing  any  sea  bank  or  sea  wall,  or  the  bank, 
dam,  or  wall  of  any  river,  canal,  drain,  aqueduct,  marsh,  reservoir, 
pool,  port,  harbor,  dock,  quay,  wharf,  jetty,  or  lock,  or  shall  unlaw- 
fully and  maliciously  open  or  draw  up  any  floodgate  or  sluice,  or  do 
any  other  injury  or  mischief  to  any  navigable  river  or  canal,  with 
intent  and  so  as  thereby  to  obstruct  or  prevent  the  carrying  on,  com- 
pleting, or  maintaining  the  navigation  thereof,  shall  be  guilty  of  felony, 
and  being  convicted  thereof  shall  be  liable,  at  the  discretion  of  the 
court,  to  be  kept  in  penal  servitude  for  any  term  not  exceeding  seven 
years,  and  not  less  than  three  [now  five]  years, — or  to  be  imprisoned 
for  any  term  not  exceeding  two  years,  with  or  without  hard  labor,  and 
with  or  without  solitary  confinement ;  and,  if  a  male  under  the  age  of 
sixteen  years,  with  or  without  whipping." 

Injuries  to  fish-ponds,  mill-dams,  etc.  By  s.  32,  "  whosoever  shall 
unlawfully  and  maliciously  cut  through,  break  down,  or  otherwise 
destroy  the  dam,  floodgate,  or  sluice  of  any  fish-pond,  or  of  any  water 
which  shall  be  private  property,  or  in  which  there  shall  be  any  pri- 
vate right  of  fishery,  with  intent  thereby  to  take  or  destroy  any  of 
the  fish  in  such  pond  or  water,  or  so  as  thereby  to  cause  the  loss  or 
destruction  of  any  of  the  fish,  or  shall  unlawfully  and  maliciously 
put  any  lime  or  other  noxious  material  in  any  such  pond  or  water 
with  intent  thereby  to   destroy  any  of  the  fish  that   may  then    be 


SEA   AND   RIVER   BANKS,    PONDS,   MILL-DAMS,    ETC.  1179 

or  that  may  thereafter  be  put  therein,  or  shall  unlawfully  and  ma- 
liciously cut  through,  break  down,  or  otherwise  destroy  the  dam 
or  floodgate  of  any  mill-pond,  reservoir,  or  pool,  shall  be  guilty  of  a 
misdemeanor,  and  being  convicted  thereof  shall  be  lial)le,  at  the 
♦discretion  of  the  court,  to  be  kept  in  penal  servitude  for  any  r^q rq 
term  not  exceeding  seven  years  and  not  less  than  three  [now  '- 
five]  years, — or  to  be  imprisoned  for  any  term  not  exceeding  two  years, 
with  or  without  hard  labor,  and  with  or  without  solitary  confinement; 
and,  if  a  male  under  the  age  of  sixteen  years,  with  or  without  whip- 
ping." 

By  the  Salmon  Fishery  Act,  36  &  37  Vict.  c.  71,  s.  13,  the  pro- 
visions of  the  thirty-second  section  of  the  "  Malicious  Injuries  to 
Property  Act "  (24  &  25  Vict.  c.  97),  so  far  as  they  relate  to  poison- 
ing any  water  with  intent  to  kill  or  destroy  fish,  shall  be  extended,  and 
apply  to  salmon  rivers,  as  if  the  words  "  or  in  any  salmon  river  "  were 
inserted  in  the  said  section  in  lieu  of  the  words  "private  rights  of 
fishery  "  after  the  words  "  noxious  material  in  any  such  pond  or 
water." 


1180  SEAMEN,   OFFENCES   RELATING  TO. 


♦954]  «SEAMEN,  OFFENCES  RELATING  TO. 

Forcing  seamen  on  shore.  By  the  17  &18  Vict.  c.  104,  s.  206, 
"  if  the  master  or  any  other  person  belonging  to  any  British  ship 
wrongfully  forces  on  shore  and  leaves  behind,  or  otherwise  wilfully 
and  wrongfully  leaves  behind  in  any  place  on  shore  or  at  sea  in  or  out 
of  her  Majesty's  dominions,  any  seaman  or  apprentice  belonging  to  such 
ship  before  the  completion  of  the  voyage  for  which  such  person 
was  engaged,  or  the  return  of  the  ship  to  the  United  Kingdom,  he 
shall  for  each  such  offence  be  deemed  guilty  of  a  misdemeanor." 

"Wrongfully  discharging  or  leaving  behind  seamen.  By  s.  207, 
"  if  the  master  of  any  British  ship  does  any  of  the  following  things 
(that  is  to  say)  : — 

(1.)   Discharges  any  seaman  or  apprentice   in  any  place  situate  in 
any  British  possession  abroad  (except  the  possession  in  which 
he  was  shipped)  without  previously  obtaining  the  sanction  in 
writing  indorsed  on  the   agreement  of  some  public  shipping 
master  or  other  officer  duly  appointed  by  the  local  government 
in  that  behalf,  or  (in  the  absence  of  any  such  functionary)  of 
the  chief  officer  of  customs  resident  at  or  near  the  place  where 
the  discharge  takes  place  ; 
(2.)  Discharges  any  seaman  or  apprentice  at  any  place  out  of  her 
Majesty's  dominions  without  previously  obtaining  the  sanction 
so  indorsed  as  aforesaid  of  the  British  consular  officer  there, 
or  (in   his    absence)  of  two    respectable   merchants    resident 
there  ; 
(3.)   Leaves  behind  any  seaman  or  apprentice  at  any  place  situate 
in    any  British    possession  abroad   on  any  groimd    whatever 
without   previously  obtaining  a  certificate    in  writing   so  in- 
dorsed as  aforesaid  from  such  officer  or  person  as  aforesaid, 
stating  the  fact  and  the  cause  thereof,  whether  such  cause  be 
unfitness  or  inability  to  proceed  to  sea,  or  desertion,  or  dis- 
appearance ; 
(4.)    Leaves  behind  any  seaman  or  apprentice  at  any  place  out  of 
her  Majesty's  dominions,  on  shore  or  at  sea,  on  any  ground 
whatever,  without  previously  obtaining  the  certificate  indorsed 
in  manner  and  to  the  effect  last  aforesaid  of  the  British  consu- 
lar officer  there,  or  (in  his  absence)  of  two  respectable  mer- 
chants, if  there  is  any  such  at  or  near  the  place  where  the 
ship  then  is  : 
he  shall  for  each  such  default  be  deemed  guilty  of  a  misdemeanor ; 
and  the  said  functionaries  shall,  and  the  said  merchants  may,  examine 
into  the  grounds  of  such  proposed  discharge,  or  into  the  allegation  of 


SEAMEN — OFFENCES  RELATING  TO.  1181 

such  unfitness,  inability,  desertion,  or  disappearance,  as  aforesaid,  in 
a  summary  way,  and  may  for  that  purpose,  if  they  think  fit  so  to  do, 
administer  oaths,  and  may  either  grant  or  refuse  such  sanction  or 
certificate  as  appears  to  them  to  be  just." 

*On  whom  burden  of  proof  lies.  By  s.  208,  "  upon  the  trial  [-*QKr 
of  any  information,  indictment,  or  other  proceeding  against  any  •- 
person  for  discharging  or  leaving  behind  any  seaman  or  apprentice, 
contrary  to  the  provisions  of  this  Act,  it  shall  lie  upon  such  person 
either  to  produce  the  sanction  or  certificate  hereby  required,  or  to  prove 
that  he  had  obtained  the  same  previously  to  having  discharged  or  left 
behind  such  seaman  or  apprentice,  or  that  it  was  impracticable  for  him 
to  obtain  such  sanction  or  certificate." 

Punishment.  By  s.  518,  every  offence  declared  by  the  Act  to  be 
a  misdemeanor  shall  be  punishable  by  fine  or  imprisonment,  with  or 
without  hard  labor. 

By  s.  20,  every  offence  is  deemed  to  have  been  committed  either 
where  it  actually  was  committed,  or  where  the  offender  may  be ;  and 
see  18  &  19  Vict.  c.  91,  s.  21. 


1182  SHIPS  AND   VESSELS. 


*956]  *SHIPS  AND  VESSELS. 

PAGE 

Stealing  from  ships,  docks,  wharves,  etc 956 

ship  in  distress  or  wrecked         .        ,        .        .        •  956 

Setting  fire  to,  casting  away,  or  destroying  ship          ....  956 

Setting  fire  to,  casting  away,  or  destroying  ship  with  intent  to  murder.  957 

Setting  fire  to,  etc.,  ship  with  intent  to  prejudice  owner  or  underwriter  957 

Attempting  to  set  fire  to,  east  away,  or  destroy  ship        .        .        .  957 

Blowing  up  or  attempting  to  blow  up  ships 957 

Otherwise  damaging  ships 957 

Exhibiting  false  signals  or  otherwise  endangering  ships    •        .        .  957 

Kemoving  or  concealing  buoys  and  other  sea-marks       .        .        .  957 

Injuries  to  wrecks  and  articles  belonging  thereto       ....  957 

Misconduct  endangering  ship  or  safety  of  persons  on  board  .        .  958 

Sending  to  sea  an  unworthy  ship 958 

Neglecting  to  render  assistance  in  collision 958 

Venue 958 

Other  offences  relating  to  vessels  and  articles  belonging  thereto    .  959 

Stealing  from  ships,  docks,  wharves,  etc.  By  the  24  &  25  Vict, 
c.  96,  s.  63,  "  whosoever  shall  steal  any  goods  or  merchandise  in  any 
vessel,  barge,  or  boat,  of  any  description  whatsoever  in  any  haven,  or 
in  any  port  of  entry  or  discharge,  or  upon  any  navigable  river  or 
canal,  or  in  any  creek  or  basin  belonging  to  or  communicating  with 
any  such  haven,  port,  river,  or  canal,  or  shall  steal  any  goods  or  mer- 
chandise from  any  dock,  wharf,  or  quay  adjacent  to  any  such  haven, 
port,  river,  canal,  creek  or  basin,  shall  be  guilty  of  felony,  and 
being  convicted  thereof,  shall  be  liable,  at  the  discretion  of  the  court, 
to  be  kept  in  penal  servitude  for  any  term  not  exceeding  fourteen  years 
and  not  less  than  three  [now  five]  years, — or  to  be  imprisoned  for  any 
term  not  exceeding  two  years,  with  or  without  hard  labor,  and  with 
or  without  solitary  confinement.'' 

Stealing  from  ship  in  distress  or  wrecked.  By  s.  64,  "  whoso- 
ever shall  plunder  or  steal  any  part  of  any  ship  or  vessel  which  shall 
be  in  distress,  or  wrecked,  stranded,  or  cast  on  shore,  or  any  goods, 
merchandise,  or  articles  of  any  kind  belonging  to  such  ship  or  vessel, 
shall  be  guilty  of  felony,  and,  being  convicted  thereof,  shall  be  liable, 
at  the  discretion  of  the  court,  to  be  kept  in  penal  servitude  for  any 
term  not  exceeding  fourteen  years,  and  not  less  than  three  [now  five] 
years, — or  to  be  imprisoned  for  any  term  not  exceeding  two  years, 
with  or  without  hard  labor,  and  with  or  without  solitary  confine- 
ment." 

Setting  fire  to,  casting  away,  or  destroying  ship.     See  24  &  25 

Vict.  c.  97,  s.  42,  supra,  p.  287. 

*9571        *Setting  fire  to,  casting  away,  or  destroying  ship  with  in- 
-1   tent  to  murder.     See  24  &  25  Vict.  c.  100,  s.  13,  supra,  p. 
809. 


SHIPS  AND  VESSELS.  1183 

Setting  fire  to  or  casting  away  ship  with  intent  to  prejudice 
owner  or  underwriter.     See  24  &  25  Vict.  c.  97,  s.  43,  supra,  p. 

288. 

Attempting  to  set  fire  to,  cast  away,  or  destroy  ship.     See  24  & 

25  Vict.  c.  97,  s.  44,  supra,  p.  289. 

Blowing  up  or  attempting  to  blow  up  ships.  See  24  &  25  Vict. 
c.  97,  s.  45,  and  c.  100,  s.  30,  supra,  p.  485. 

Otherwise  damaging  ships.  By  the  24  &  25  Vict.  c.  97,  s.  46, 
"  whosoever  shall  unlawfully  and  maliciously  damage  otherwise  than 
by  fire,  gunpowder,  or  other  explosive  substance,  any  ship  or  vessel, 
whether  complete  or  in  an  unfinished  state,  with  intent  to  destroy  the 
same  or  render  the  same  useless,  shall  be  guilty  of  felony,  and  being 
convicted  thereof  shall  be  liable,  at  the  discretion  of  the  court,  to  be 
kept  in  penal  servitude  for  any  term  not  exceeding  seven  years  and 
not  less  than  three  [now  five]  years — or  to  be  imprisoned  for  any 
term  not  exceeding  two  years,  with  or  without  hard  labor,  and  with 
or  without  solitary  confinement,  and  if  a  male  under  the  age  of  six- 
teen years,  with  or  without  whipping." 

Exhibiting  false  signals  or  otherwise  endangering  ships.  By  s.  47, 

**  whosoever  shall  unlawfully  mask,  alter,  or  remove  any  light  or 
signal,  or  unlawfully  exhibit  any  false  light  or  signal,  with  intent 
to  bring  any  ship,  vessel,  or  boat  into  danger,  or  shall  unlawfully 
and  maliciously  do  anything  tending  to  the  immediate  loss  or  de- 
struction of  any  ship,  vessel,  or  boat,  and  for  which  no  punishment 
is  hereinbefore  provided,  shall  be  guilty  of  felony,  and  being  con- 
victed thereof  shall  be  liable,  at  the  discretion  of  the  court,  to  be 
kept  in  penal  servitude  for  life,  or  for  any  terra  not  less  than  three 
[now  five]  years, — or  to  be  imprisoned  for  any  term  not  exceeding 
two  years,  with  or  without  hard  labor,  and  with  or  without  solitary 
confinement,  and,  if  a  male  under  the  age  of  sixteen  years,  with  or 
without  whipping." 

Bemoving  or  concealing  buoys  and  other  sea-marks.  By  s.  48, 
"  whosoever  shall  unlawfully  and  maliciously  cut  away,  cast  adrift, 
remove,  alter,  deface,  sink,  or  destroy,  or  shall  unlawfully  and 
maliciously  do  any  act  with  intent  to  cut  away,  cast  adrift,  remove, 
alter,  deface,  sink,  or  destroy,  or  shall  in  any  other  manner  unlawfully 
and  maliciously  injure  or  conceal  any  boat,  buoy,  buoy  rope,  perch, 
or  mark  used  or  intended  for  the  guidance  of  seamen  or  for  the 
purpose  of  navigation,  shall  be  guilty  of  felony,  and  being  convicted 
thereof,  shall  be  liable,  at  the  discretion  of  the  court,  to  be  kept  in 
penal  servitude  for  any  term  not  exceeding  seven  years  and  not  less 
than  three  [now  five]  years, — or  to  be  imprisoned  for  any  term  not 
exceeding  two  years, — with  or  without  hard  labor,  and  with  or  with- 
out solitary  confinement,  and  if  a  male  under  the  age  of  sixteen  years, 
with  or  without  whipping." 


1184  SHIPS   AND   VESSELS. 

Injuries  to  wrecks  and  articles  belonging  thereto.  By  the  24  & 
25  Vict.  c.  97,  s.  49,  **  whosoever  sliall  unlawlully  and  malieiously 
i^Q-a-\  *destroy  any  part  of  any  ship  or  vessel  which  shall  he  in  dis- 
^  tress,  or  wrecked,  stranded,  or  cast  on  shore,  or  any  goods,  mer- 
chandise, or  articles  of  any  kind  belonging  to  such  ship  or  vessel,  shall 
be  guilty  of  felony,  and  being  convicted  thereof  shall  be  liable,  at  the 
discretion  of  the  conrt,  to  be  kept  in  penal  servitude  for  any  term  not 
exceeding  fourteen  and  not  less  than  three  [now  five]  years,  or  to  be 
imprisoned  for  any  term  not  exceeding  two  years,  with  or  without 
hard  labor,  and  with  or  without  solitary  confinement." 

Misconduct  endangering  ship  or  safety  of  persons  on  board.  By 
the  17  &  18  Vict.  c.  104,  s.  239,  "  any  master  of,  or  any  seaman  or  ap- 
prentice belonging  to  any  British  ship,  who  by  wilful  breach  of  duty,  or 
by  neglect  of  duty,  or  by  reason  of  drunkenness,  does  any  act  tending 
to  the  immediate  loss,  destruction,  or  serious  damage  of  such  ship, 
or  tending  immediately  to  endanger  the  life  or  limb  of  any  person 
belonging  to  or  on  board  of  such  ship,  or  who  by  wilful  bre^ich  of 
duty,  or  by  neglect  of  duty,  or  by  reason  of  drunkenness,  refuses  or 
omits  to  do  any  lawful  act  proper  and  requisite  to  be  done  by  him  for 
preserving  such  ship  from  immediate  loss,  destruction,  or  serious 
damage,  or  for  preserving  any  person  belonging  to  or  on  board  of 
such  ship  from  immediate  danger  to  life  or  limb,  shall  for  every  such 
offence  be  deemed  guilty  of  a  misdemeanor." 

By  s.  366,  the  same  provision  is  made  with  respect  to  pilots,  "  when 
in  charge  of  any  ship." 

By  s.  518,  "  every  offence  by  this  Act  declared  to  be  a  misdemeanor 
shall  be  punishable  by  fine  or  imprisonment,  with  or  without  hard 
labor." 

Sending  to  sea  an  unworthy  ship.  By  the  39  &  40  Vict.  c.  80, 
8.  4,  every  person  who  sends  a  ship  to  sea  in  such  unseaworthy 
state  that  the  life  of  any  person  would  be  likely  to  be  endangered, 
is  guilty  of  a  misdemeanor,  unless  he  prove  that  he  used  all  reason- 
able means  to  insure  her  being  sent  to  sea  in  a  seaworthy  state,  or 
that  her  going  to  sea  in  such  unseaworthy  state  was,  under  the  cir- 
cumstances, reasonable  and  justifiable ;  and  for  the  purpose  of  giving 
such  proof,  such  person  may  give  evidence  in  the  same  manner  as  any 
other  witness,  and  every  master  who  knowingly  takes  such  a  ship  to 
sea  is  guilty  of  a  misdemeanor.  No  prosecution  under  the  section 
shall  be  instituted  except  by  or  with  the  consent  of  the  Board  of 
Trade  or  of  the  governor  of  the  British  Possession  in  which  the  prose- 
cution takes  place.  No  misdemeanor  under  this  section  shall  be 
punishable  upon  summary  conviction. 

Neglecting  to  render  assistance  in  collision.  By  the  36  &  37 
Vict.  c.  85,  s.  16,  the  neglect  of  the  master  of  a  vessel  to  render  as- 
sistance in  the  case  of  collision,  or  to  give  to  the  other  vessel  the  name, 
port  of  registry,  etc.,  of  his  own  vessel,  is  a  misdemeanor. 


SHIPS   AND   VESSELS.  1185 

Venue.  By  the  24  &  25  Vict.  c.  96,  s.  64  (supra),  in  oifences  under 
that  section,  "  the  offender  may  be  indicted  and  tried  either  in  the 
county  or  place  in  which  the  offence  shall  have  been  committed,  or  in 
any  county  or  place  next  adjoining."  By  the  17  &  18  Vict.  c.  104, 
s.  520,  "  for  the  purpose  of  giving  jurisdiction  under  this  Act,  every 
offence  shall  be  deemed  to  have  been  committed,  and  every  cause  of 
complaint  to  have  arisen,  either  in  the  place  in  which  the  same 
*actually  was  committed  or  arose,  or  in  any  place  in  which  the  r*QKQ 
offender  or  person  complained  against  may  be."  L 

Other  oflfences  relating  to  vessels  and  articles  belonging  thereto. 

As  to  destroying,  etc.,  cordage  on  the  Thames,  see  2  &  3  Vict.  c.  47, 
ss.  27,  28  ;  destroying  ships  in  the  port  of  London,  39  Geo.  3,  c.  69, 
s.  4,  ante,  p.  288  ;  destroying  ships  of  war,  12  Geo.  3,  c.  24,  ante,  p. 
288  ;  as  to  receiving  anchors  or  goods  in  the  Cinque  Ports,  1  &  2  Geo. 
4.  c.  76. 


75 


1186  SHOOTING. 


^960] 


♦SHOOTING. 


Shooting  or  attempting  to  shoot  with  intent  to  murder.     See  24 

&  25  V^ict.  c.  100,  s.  14,  supra,  p.  809. 

Shooting  or  attempting  to  shoot  with  intent  to  do  grievous 
bodily  harm.     See  24  &  25  Vict.  c.  100,  s.  18,  sujira,  p.  609. 

What  shall  constitute  loaded  arms.  By  the  24  &  25  Vict.  c. 
100,  s.  19,  "any  gun,  pistol,  or  other  arms  which  shall  be  loaded  in 
the  barrel  with  gunpowder  or  any  other  explosive  substance,  and  ball, 
shot,  slug,  or  other  destructive  material,  shall  be  deemed  to  be  loaded 
arms  within  the  meaning  of  this  Act,  although  the  attempt  to  dis- 
charge the  same  may  fail  from  want  of  proper  priming  or  from  any 
other  cause." 

Proof  of  arms  being  loaded.  It  makes  no  difference  what  the 
gun  or  other  arm  is  loaded  with,  if  it  is  capable  of  effecting  the  intent 
with  which  the  prisoner  is  charged.  Per  Le  Blanc,  J.,  R.  v.  Kitchen, 
Russ.  &  Ry.  95.  Upon  an  indictment  for  priming  and  levelling  a 
blunderbuss,  loaded  with  gunpowder  and  leaden  shot,  and  attempting, 
by  drawing  the  trigger,  to  discharge  the  same,  with  intent  to  murder, 
the  jury  found  that  the  blunderbuss  was  not  primed  when  the  prisoner 
drew  the  trigger,  but  found  the  prisoner  guilty.  On  a  case  reserved, 
a  majority  of  the  judges  considered  the  verdict  of  the  jury  as  equiv- 
alent to  a  finding  by  them,  that  the  blunderbuss  was  not  so  loaded  as 
to  be  capable  of  doing  mischief  by  having  the  trigger  drawn,  and  if 
such  were  the  case,  they  were  of  opinion,  in  point  of  law,  that  it  was 
not  loaded  within  the  meaning  of  the  statute.  R.  v.  Carr,  Russ.  & 
Ry.  377.  So  upon  an  indictment  under  the  9  Geo.  4,  c.  31  (repealed), 
for  attempting  to  discharge  a  loaded  pistol  by  drawing  the  trigger, 
with  intent,  etc.,  the  defence  was,  that  the  touch-hole  was  plugged  ; 
Patteson,  J.,  said  to  the  jury,  "  If  you  think  that  the  pistol  had  its 
touch-hole  plugged,  so  that  it  could  not  by  possibility  do  mischief,  the 
prisoner  ought  to  be  accpiitted,  because  I  do  not  think  that  a  pistol  so 
circumstanced  ought  to  be  considered  as  loaded  arms  within  the  mean- 
ing of  the  Act."  R.  V.  Harris,  5  C.  &  P.  159,  24  E.  C.  L.  A  rifle, 
which  is  loaded,  but  which,  for  Avant  of  priming,  will  not  go  off,  is 
not  a  loaded  arm  within  the  1  Vict.  c.  85,  s.  3  ;  and  the  pointing  a 
rifle  thus  circumstanced  at  a  person,  and  pulling  the  trigger  of  it, 
whereby  the  cock  and  hammer  were  thrown,  and  the  pan  opened, 
will  not  Avarrant  a  conviction,  under  that  section.  R.  v.  James,  1 
C.  &  K.  530,  47  E.  C.  L.  But  see  now  24  &  25  Vict.  c.  100,  s.  19, 
supra. 


SHOOTING.  1187 

Where  the  prisoner,  by  snapping  a  percussion-cap,  discharged  a  gun- 
barrel  detached  from  the  stock  ;  Patteson,  J.,  held  this  to  be  shooting 
with  "  loaded  arms,"  within  the  9  Geo.  4,  c.  31,  and  after  consulting 
several  of  the  judges,  refused  to  reserve  the  point.  R.  v.  Coates,  6 
C.  &  P.  394,  25  E.  C.  L. 

*Proof  of  shooting.  Where  the  prisoner  fired  into  a  room  r^sqn-i 
in  which  he  supposed  the  prosecutor  to  be,  but  in  point  of  fact  L 
he  was  in  another  part  of  the  house  where  he  could  not  by  possibility 
be  reached  by  the  shot ;  Gurney,  B,,  held  that  the  indictment  could 
not  be  supported.  R.  v.  Lovell,  2  Moo.  &  R.  30.  An  indictment  for 
maliciously  shooting  at  A.  B.  is  supported,  if  he  be  struck  by  the 
shot,  though  the  gun  be  aimed  at  a  different  person.  R.  v.  Jarvis,  2 
Moo.  &  R.  40,  and  see  ante,  p.  611. 

Some  act  must  be  done  to  constitute  an  attempt  to  discharge  fire- 
arms. Merely  presenting  them  is  not  sufficient.  R.  v.  Lewis,  9  C.  & 
P.  523,  38  E,  C.  L.  If  a  person,  intending  to  shoot  another,  put  his 
finger  on  the  trigger  of  a  loaded  fire-arm,  but  is  prevented  from  pul- 
ling the  trigger,  this  it  is  said  is  not  an  attempt  to  discharge  loaded 
arms  within'the  statute.  R.  v.  St.  George,  9  C.  &  P.  483,  38  E.  C. 
L.  Considerable  doubt  was  however  thrown  upon  these  two  cases  in 
R.  y.  Brown,  10  Q.  B.  D.  381 ;  52  L.  J.,  M.  C.  49  ;  see  this  case, 
ante,  pp.  304,  312,  810. 

Sending  a  tin  box,  filled  with  gunpowder  and  peas,  to  the  prosecu- 
tor, so  contrived  that  the  prosecutor  should  set  fire  to  the  powder  by 
opening  the  box,  was  held  by  the  judges  not  to  be  an  attempt  to  dis- 
charge loaded  arms  within  the  repealed  statute  9  Geo.  4,  c.  31,  s.  11 ; 
R.  V.  Mountford,  1  Moo.  C.  C.  441. 


1188  SHOP 


'9G2] 


*SHOP. 


Breaking  in  or  out  of,  and  committing  any  felony  in  a  shop, 
warehouse,  or  counting-house.  Tliis  offence  is  provided  for  by  tlie 
24  &  25  Vict.  c.  96,  s.  56,  supra,  p.  453.  The  general  law  on  the 
subject  will  be  found  under  the  heads  "  Burglary  "  and  "  Dwelling- 
house." 

What  buildings  are  within  the  section.  It  was  held  by  Alder- 
son,  B.,  that  a  workshop,  such  as  a  carpenter's  or  blacksmith's  shop, 
was  not  within  the  7  &  8  Geo.  4,  c.  29,  s.  15,  a  similar  Act  to  that 
now  in  force.  R.  v.  Sanders,  9  Carr.  &  P.  79,  38  E.  0.  L.  But  it 
was  subsequently  held  by  Lord  Denman,  C.  J.,  in  R.  v.  Carter,  1  C. 
&  K.  173,  47  E.  G.  L.,  that  a  person  who  breaks  into  an  ordinary 
blacksmith's  shop  containing  a  forge  and  used  as  a  workshop  only,  not 
being  inhabited,  nor  attached  to  any  dwelling-house,  and  who  steals 
goods  therein,  may  be  convicted  of  breaking  into  a  shop  and  stealing 
goods,  under  the  foregoing  section.  A  building  formed  part  of  prem- 
ises employed  as  chemical  works ;  it  was  commonly  called  "  The  Ma- 
chine House,"  a  weighing-machine  being  there,  where  all  the  goods 
sent  out  were  weighed,  and  a  book  being  kept  there,  in  which  entries 
of  the  goods  so  weighed  were  made.  It  appeared  that  the  account  of 
the  time  of  the  workmen  employed  in  the  works  was  kept  in  this 
place ;  that  the  wages  of  the  men  were  paid  there ;  that  the  books  in 
which  the  entries  of  time  and  the  payment  of  wages  were  entered, 
were  brought  to  the  building  for  the  purpose  of  making  entries  and 
paying  wages,  but  that  at  other  times  they  were  kept  in  what  is  called 
"  the  office,"  where  the  general  books  and  accounts  of  the  concern 
were  kept.  It  was  held,  that  this  building  was  a  counting-house 
within  the  section.  R.  v.  Potter,  2  Den.  G.  G.  R.  235 ;  23  L.  J.,  M. 
G.  170.  A  cellar  used  merely  for  the  deposit  of  goods  intended  for 
removal  and  sale  is  a  warehouse  within  this  section.  Fer  Rolfe,  B., 
in  R.  V.  Hill,  2  Moo.  &  R.  458. 


SMUGGLING.  1189 


♦SMUGGLING.  [*963 

AND  OTHER  OFFENCES  CONNECTED  WITH  THE  CUSTOMS. 

PAGE 
Assembling  to  assist  in  smuggling        .......        9(53 

Proof  of  being  assembled  together 964 

Proof  of  being  armed  with  offensive  weapons 964 

Making  signals  to  smuggling  vessels 964 

Shooting  at  a  vessel  belonging  to  the  navy,  etc.  ,        .        .        .        965 

Assaults  upon  revenue  officers 965 

Compensations  and  rewards 966 

Indictments — how  preferred  and  found  .,.,,..     966 
Limitation  of  prosecutions   ....,,...        966 

Venue ..966 

Presumptions •        •        966 

The  statutes  against  the  offence  of  smuggling  were  included  in  the 
6  Geo.  4,  c.  108  ;  but  other  statutes  having  been  subsequently  passed, 
the  whole  were  consolidated  in  the  3  &  4  Will.  4,  c.  53.  This  latter 
statute,  and  the  parts  of  Acts  subsequently  passed  for  the  amendment 
of  the  law,  were  consolidated  in  the  8  &  9  Vict.  c.  87  (U.  K.),  and  the 
16  &  17  Vict.  c.  107,  which  are  repealed  by  the  39  &  40  Vict.  c.  36. 
This  Act  contains  various  regulations  with  regard  to  prosecutions  by 
the  customs  in  general. 

Assembling  to  assist  in  smuggling.  By  the  42  &  43  Vict.  c.  21, 
s.  10,  all  persons  to  the  number  of  three  or  more  who  shall  assemble 
for  the  purpose  of  unshipping,  landing,  running,  carrying,  concealing, 
or  having  so  assembled  shall  unship,  land,  run,  carry,  convey,  or  con- 
ceal any  spirits,  tobacco,  or  any  prohibited,  restricted,  or  uncustomed 
goods  shall  each  forfeit  a  penalty  not  exceeding  500^.,  nor  less  than  100/, 

By  s.  189  of  the  39  &  40  Vict.  c.  36,  every  person  who  shall  by  any 
means  procure  or  hire  any  person  or  persons  to  assemble  for  the  pur- 
pose of  being  concerned  in  the  landing,  or  unshipping,  or  carrying, 
conveying,  or  concealing  any  goods  which  are  prohibited  to  be  im- 
ported, or  the  duties  for  which  have  not  been  paid  or  secured,  shall 
be  imprisoned  for  any  term  not  exceeding  twelve  months ;  and  if  any 
person  engaged  in  the  commission  of  any  of  the  above  offences  be 
armed  with  firearms  or  other  offensive  weapons,  or  whether  so  armed 
or  not  be  disguised  in  any  way,  or  being  so  armed  or  disguised  shall 
be  found  with  any  goods  liable  to  forfeiture  under  the  Customs  Acts 
within  five  miles  of  the  sea  coast  or  of  any  tidal  river,  shall  be  im- 
prisoned, with  or  without  hard  labor,  for  any  term  not  exceeding 
three  years. 

Under  the  former  statute  16  &  17  Vict,  c.  107,  s.  246,  it  was  made 
*a  felony  for  persons  to  the  number  of  three  or  more  to  as-   r^qcA 
semble  armed  in  order  to  aid,  or  in  fact  aiding,  in  smuggling,    L 
etc. ;  but  it  is  difficult  to  say  what  is  meant  by  the  above  sections. 
See  note  to  Stephens'  Digest,  p.  44.     The  meaning  of  the  sections,  if 


1190  SMUGGLING. 

the  grammatical  construction  is  adhered  to,  seems  to  be  that  all  per- 
sons assembling  to  the  number  of  three,  whetlier  armed  or  not,  shall 
forfeit  a  penalty ;  every  person  who  shall  ])rocure  other  persons  to 
assemble,  whether  armed  or  not,  shall  be  imprisoned  for  twelve  months, 
and  if  such  persons  assembling  shall  be  armed,  the  person  procuring 
them  to  assemble  shall  be  imprisoned  for  three  years.  But  the  inten- 
tion of  the  sections  probably  is  that  persons  assembling  to  the  mimber 
of  three  are  to  incur  a  penalty,  and  j)ei'sons  procuring  them  to  assemble 
are  to  be  imprisoned  for  twelve  months ;  but  if  persons  assemble  or 
procure  others  to  assemble,  and  are  armed,  they  are  to  be  imprisoned 
for  three  years. 

Proof  of  being  assembled  together.  It  was  held  under  the  former 
statute  that  it  must  be  proved  that  the  prisoners,  to  the  number  of 
three  or  more,  were  assembled  together,  and  as  it  seems,  delibeiately, 
for  the  purpose  of  aiding  and  assisting  in  tlie  commission  of  the  illegal 
act.  Where  a  number  of  drunken  men  came  from  an  alehouse,  and 
hastily  set  themselves  to  carry  away  some  Geneva  which  had  been 
seized,  it  v/as  considered  very  doubtful  whether  the  case  came  within 
the  statute  19  Geo.  2,  c.  34  (now  repealed),  the  words  of  which  mani- 
festly allude  to  the  circumstance  of  great  multitudes  of  people  coming 
down  upon  the  beach  of  the  sea  for  the  purpose  of  escorting  uncustomed 
goods.     E.  V.  Hutchinson,  1  Leach,  343. 

Reasonable  proof  must  be  given  from  which  the  jury  may  infer 
that  the  goods  were  uncustomed.     See  R.  v.  Shelley,  1  Leach,  340  (?i). 

Proof  of  being  armed  with  ofiensive  weapons.  Although  it 
may  be  difficult  to  define  what  is  to  be  called  an  ofiensive  weapon,  yet 
it  would  be  going  too  far  to  say  that  nothing  but  guns,  pistols,  daggers, 
and  instruments  of  war  are  to  be  so  considered  ;  bludgeons,  properly  so 
called,  and  clubs,  and  anything  not  in  common  use  for  any  other  pur- 
pose than  a  weapon,  being  clearly  offensive  weapons  within  the  mean- 
ing of  the  Act.  E,.  V.  Cosan,  1  Leach,  342,  343  (n).  Large  sticks, 
in  one  case,  were  held  not  to  be  offensive  weapons ;  the  preamble  of 
the  statute  showing  that  they  must  be  what  the  law  calls  dangerous. 
R.  V.  Ince,  1  Leach,  342  («).  But  on  an  indictment  with  intent  to 
rob,  a  common  walking-stick  has  been  held  to  be  an  offensive  weapon. 
R.  V.  Johnson,  Russ.  &  Ry.  492,  and  R.  v.  Fry,  2  Moo.  &  R.  42,  ante, 
p.  603.  See  also  R.  v.  Sharwin,  1  East,  P.  C.  421.  A  whip  was 
held  not  to  be  "  an  offensive  weapon,"  within  the  9  Geo.  2  c.  35  (re- 
pealed). R.  V.  Fletcher,  1  Leach,  23  :  and,  under  the  6  Geo.  4,  c.  108 
(repealed)  bats,  which  are  poles  used  by  smugglers,  to  carry  tubs,  were 
held  not  to  be  offensive  weapons.  R.  v.  Noakes,  5  C.  &  P.  32G,  24  E.  C.  L. 
If  in  a  sudden  affray  a  man  snatch  up  a  hatchet,  this  does  not  come 
within  the  statute.     R.  v.  Rose,  1  Leach,  342  (n).     See  supra,  p.  602. 

Making  signals  to  smuggling  vessels.  By  s.  190  of  the  39  &  40 
Vict.  c.  36,  "  no  person  shall  after  sunset  and  before  sunrise  between  the 
21st  day  of  September  and  the  1st  day  of  April,  or  after  the  hour  of 


SMUGGLING.  1191 

*eight  in  the  evening  and  before  the  hour  of  six  in  the  morn-  r^qne 
ing-  at  any  other  time  of  the  year,  malve,  aid,  or  assist  in  making  L 
any  signal  in  or  on  board,  or  from  any  ship  or  boat,  or  on,  or  from  any 
part  of  the  coast  or  shore  of  the  United  Kingdom,  or  within  six  miles 
of  any  part  of  such  coast  or  shore,  for  the  purpose  of  giving  notice  to 
any  person  on  board  any  smuggling  ship  or  boat,  whether  any  person 
on  board  of  any  such  ship  or  boat  be  or  not  within  distance  to  notice 
any  such  signal ;  and  if  any  person,  contrary  to  the  Customs  Act, 
shall  make,  or  cause  to  be  made,  or  aid  or  assist  in  making  any  such 
signal,  he  shall  be  guilty  of  a  misdemeanor ;  and  may  be  stopped, 
arrested,  detained,  and  conveyed  before  any  justice,  who,  if  he  see 
cause,  shall  commit  the  oifender  to  the  next  county  gaol,  there  to 
remain  until  delivered  by  due  course  of  law ;  and  it  shall  not  be 
necessary  to  prove  on  any  indictment  or  information  in  such  case 
that  any  ship  or  boat  was  ac-tually  on  the  coast ;  and  the  oU'ender, 
being  duly  convicted,  shall,  by  order  of  the  court  before  whom  he 
shall  be  convicted,  either  forfeit  the  penalty  of  one  hundred  pounds, 
or,  at  the  discretion  of  such  court,  be  committed  to  a  gaol  or  house  of 
correction,  there  to  be  ke})t  to  hard  labor  for  any  term  not  exceeding 
one  year."  By  s.  191,  "  if  any  person  be  charged  with  having  made, 
or  for  aiding  or  assisting  in  making  any  such  signal  as  aforesaid,  the 
burden  of  proof  that  such  signal,  so  charged  as  having  been  made 
with  intent  and  for  the  purpose  of  giving  such  notice  as  aforesaid, 
was  not  made  with  such  intent  and  for  such  purpose,  shall  be  upon 
the  defendant  against  whom  such  charge  is  made,  or  such  indictment 
found."  By  s.  192,  any  person  may  prevent  such  signals  being  made, 
and  may  enter  lands  for  that  purpose. 

Shooting  at  a  vessel  belonging  to  the  navy,  etc.  By  s.  193,  "  if 
any  person  shall  maliciously  shoot  at  any  vessel  or  boat  belonging  to 
her  IMajesty's  navy,  or  in  the  service  of  the  revenue,  or  shall  maliciously 
shoot  at,  maim,  or  wound  any  officer  of  the  army,  navy,  or  marines 
being  duly  employed  in  the  prevention  of  smuggling  and  on  full  pay, 
or  any  officer  of  customs  or  excise,  or  any  person  acting  in  his  aid  or 
assistance,  or  duly  employed  for  the  prevention  of  smuggling,  in  the 
execution  of  his  office  or  duty  (see  section  261,  post,  p.  96G),  every 
person  so  offianding,  and  every  person  aiding,  abetting,  or  assisting 
therein,  shall,  upon  conviction,  be  adjudged  guilty  of  felony,  and 
shall  be  liable,  at  the  discretion  of  the  court,  to  penal  servitude  for 
any  term  not  less  than  five  years,  or  to  be  imprisoned  for  any  term 
not  exceeding  three  years." 

Upon  an  indictment  under  the  first  part  of  this  section,  the  pros- 
ecutor must  prove — 1,  the  shooting;  2,  the  malice;  3,  that  the 
vessel  shot  at  was  belonging  to  the  navy,  or  in  the  service  of  the 
revenue. 

Upon  the  statute  52  Geo.  3,  c.  143,  s.  11,  now  repealed,  it  was  held, 
that  if  a  custom-house  vessel  chased  a  smuggler,  and  fired  into  her 
without  hoisting  such  a  pendant  and  ensign  as  the  statute  56  Geo.  3, 
St.  2,  c.  104,  s.  8  (repealed),  required,  the  returning  of  tlie  fire  by  the 


1192  SMUGGLING. 

smuggler  was  not  malicious  within  the  Act.     E,.  v.  Reynolds,  Russ.  & 
Ry.  465. 

Assaults  upon  revenue  officers.     Assaults  upon  revenue  officers  in 
the  execution  of  their  duty  are  iucluded  in  the  general  provisions  of 
*Qral   *^^^^  ■^^  ^  '^^  Vict.  c.  100,  s.  38,  supra,  p.  302  ;  and  see  the  44 
^^^-J   Vict.  c.  12,  s.  12. 

Compensations  and  rewards.  See  as  to  compensations  and  rewards 
to  officers  and  others  employed  in  preventing  smuggling,  39  &  40 
Vict.  c.  36,  ss.  210—216. 

Indictments — how  preferred  and  found.  By  the  39  &  40  Vict, 
c.  36,  s.  255,  "  all  indictments  or  suits  for  any  offences  or  the  recovery 
of  any  penalties  or  forfeitures  under  the  C'ustoms  Acts,  shall,  except 
in  the  cases  where  summary  jurisdiction  is  given  to  justices,  be  pre- 
ferred or  commenced  in  the  name  of  her  Majesty's  Attorney-General 
for  England  or  Ireland,  or  the  Lord  Advocate  of  Scotland,  or  of  some 
officer  of  customs  or  inland  revenue."  By  sect.  256,  the  Attorney- 
General  or  Lord  Advocate  may  enter  a  oiolle  prosequi} 

Limitation  of  prosecution.  By  s.  257,  "all  suits,  indictments,  or 
informations  brought,  or  exhibited  for  any  offence  against  the  Cus- 
toms Acts  in  any  court  or  before  any  justice,  shall  be  brought  or 
exhibited  within  three  years  next  after  the  date  of  the  offence  com- 
mitted." 

Venue.  By  s.  258,  "  Any  indictment,  prosecution,  or  information 
which  may  be  instituted  or  brought  under  the  direction  of  the  com- 
missioners of  customs  for  offences  against  the  Customs  Acts,  shall  and 
may  be  inquired  of,  examined,  tried,  and  determined  in  any  county 
of  England,  when  the  offence  is  committed  in  England,  and  in  any 
county  of  Scotland,  when  the  offence  is  committed  in  Scotland,  and 
in  any  county  of  Ireland,  when  the  offence  is  conmiitted  in  Ireland, 
in  such  manner  and  form  as  if  the  offence  had  been  committed  in 
the  said  county,  where  the  said  indictment  or  information  shall  be 
tried." 

Presumptions.  By  s.  260,  "  the  averment  that  the  commissioners 
of  customs  or  inland  revenues  have  directed  or  elected  that  any  infor- 
mation or  proceedings  under  the  Customs  Acts  shall  be  instituted,  or 
that  any  ship  or  boat  is  foreign,  or  belonging  wholly  or  in  part  to  her 

^  An  indictment  charging  the  removal  of  a  certain  quantity  of  distilled  spirits  on 
which  the  tax  had  not  been  paid,  to  a  place  other  than  the  distillery  warelioiise  is 
good.  U.  S.  V.  Anthony,  14  Blatch.  92.  Where  the  goods  of  A.  are  seized  in  tlie 
hands  of  B.  as  bailee  of  A.,  and  there  left,  pending  the  decision  of  the  proper  court,  in 
u  subsequent  suit  against  B.  it  is  a  good  defence  tJiat  tiie  suit  against  A.  has  been  dis- 
missed. Pettigrew  r.  United  States,  97  U.  S.  385.  It  is  no  defence  to  an  action 
for  the  forfeiture  of  certain  distilled  spirits,  that  the  defendant  has  in  good  faith 
made  advances  upon  it.     Bovd  v.  United  States,  14  Blatch.  317. 


SMUGGLING.  1193 

Majesty's  subjects,  or  that  any  person  detained  or  found  on  board  any 
ship  or  boat  liable  to  seizure,  is  or  is  not  a  subject  of  her  Majesty 

or  that  any  person  is  an  officer  of  customs  or  excise, 

or  that  any  person  was  employed  for  the  prevention  of  smuggling^  or 
that  the  offence  was  committed  within  the  limits  of  any  port,  or 
where  the  offence  is  committed  in  any  port  of  the  United  Kingdom, 
the  naming  of  such  in  any  information  or  proceeding  shall  be  deemed 
to  be  sufficient,  unless  the  defendant  in  any  such  case  shall  prove  to 
the  contrary."  By  s.  261,  "if  upon  any  trial  a  question  shall  arise 
whether  any  person  is  an  officer  of  the  army,  navy,  marines,  or  coast- 
guard, duly  employed  for  the  prevention  of  smuggling,  and  on  full 
pay,  or  an  officer  of  customs  or  excise,  his  own  evidence  thereof,  or 
other  evidence  of  his  having  acted  as  such,  shall  be  deemed  sufficient, 
and  such  person  shall  not  be  required  to  produce  his  commission  or 
deputation."  By  s.  262,  "  the  order,  or  any  letter  or  instructions 
referring  thereto,  shall  be  sufficient  evidence  of  any  order  issued  by 
the  commissioners  of  the  treasury,  or  by  the  commissioners  of  customs 
or  inland  revenue." 


1194  SODOMY. 


^967] 


*SODOMY. 


By  the  24  &  25  Vict,  c,  100,  s.  61,  "whosoever  shall  be  convicted 
of  the  abominable  crime  of  buggery  committed  either  with  mankind 
or  with  any  animal,  shall  be  liable,  at  the  discretion  of  the  court,  to  be 
kept  in  penal  servitude  for  life,  or  for  any  term  not  less  than  ten  years." 

If  the  otfence  be  committed  on  a  boy  under  fourteen  years  of  age, 
it  is  felony  in  the  agent  only.  1  Hale,  670  ;  3  Inst.  59.  In  R.  v. 
Allen,  1  I)cn.  C.  C.  R.  364,  the  prisoner  induced  a  boy  of  twelve  years 
of  age  to  have  carnal  knowledge  of  his  person,  the  prisoner  having 
been  the  pathic  in  the  crime  ;  and  the  court  were  unanimously  of 
opinion  that  the  conviction  was  right. 

In  one  case  a  majority  of  the  judges  were  of  opinion  that  the  com- 
mission of  the  crime  with  a  woman  was  indictable.  R.  v.  Wiseman, 
Fortescue,  91  ;  and  see  R.  v.  Jellyman,  8  C.  &  P.  604,  38  E,  C,  L., 
where  Patteson,  J.,  held  that  a  married  woman  who  consents  to  her 
husband  committing  an  unnatural  oifence  with  her,  is  an  accomplice  in 
the  felony,  and  as  such  that  her  evidence  requires  confirmation,  though 
consent  or  non-consent  is  not  material  to  the  offence. 

The  act  in  a  child's  mouth  does  not  constitute  the  offence.  R.  v. 
Jacob,  Russ.  &  Ry.  331. 

The  offence  would  be  complete  on  proof  of  penetration  only ;  ^  see 
24  &  25  Vict.  c.  100,  s.  63,  ante,  tit.  "Rape." 

1  Davis  V.  State,  3  Har.  &  Johns.  154.     S. 

By  Penna.  Stat.  11  June,  1879,  P.  L.  148,  mere  penetration  completes  the  crime. 
Evidence  that  tlie  person  injured  made  early  complaint  is  admissible,  but  not  his 
declarations,  unless  made  in  the  presence  of  the  accused,  or  necessary  for  the  pur- 
poses of  corroboration.  State  v.  Gruso,  28  La.  An.  952.  It  Ls  not  an  indictable  crime 
in  Iowa :  Estes  v.  Carter,  10  la.  400  ;  but  is  so  in  Texas  by  statute  :  Frazier  v.  State, 
39  Tex.  390;  Ex  parte  Bergen,  14  Tex.  Ap.  52;  and  in  Louisiana:  State  t'.Williams, 
34  La.  An.  87  ;  also  in  California ;  People  v.  Williams,  39  Cal.  397. 


SPEING-GUNS.  1195 


*SPIIING-GUNS. 


[*968 


By  the  24  &  25  Vict.  c.  100,  s.  31,  "whosoever  shall  set  up  or  place, 
or  cause  to  be  set  or  placed,  auy  sprinp;-guu,  man-trap,  or  other  engine 
calculated  to  destroy  human  life  or  inllict  grievous  bodily  harm,  Avith 
the  intent  that  the  same  or  whereby  the  same  may  destroy  or  inllict 
grievous  bodily  harm  upon  a  trespasser  or  other  person  coming  in  con- 
tact theresvith,  shall  be  guilty  of  a  misdemeanor,  and  being  convicted 
thereof  shall  be  liable,  at  the  discretion  of  the  court,  to  be  kept  iu 
penal  servitude  for  the  term  of  three  [now  five]  years,  or  to  be  im- 
prisoned for  any  term  not  exceeding  two  years,  with  or  without  hard 
labor ;  and  whosoever  shall  knowingly  and  wilfully  permit  any  such 
spriug-gan,  man-trap,  or  other  engine  which  may  have  been  set  or 
placed  in  any  place  then  being  in  or  afterwards  coming  into  his  pos- 
session or  occupation  by  some  other  person  to  continue  so  set  or  placed, 
shall  be  deemed  to  have  set  and  placed  such  gun,  trap,  or  engine  with 
such  intent  as  aforesaid  :  provided  that  nothing  in  this  section  contained 
shall  extend  to  make  it  illegal  to  set  or  place  auy  gin  or  trap  such  as 
may  have  been  or  may  be  usually  set  or  placed  with  the  intent  of  de- 
stroying vermin :  provided  also,  that  nothing  in  this  section  shall  be 
deemed  to  make  it  unlawful  to  set  or  place,  or  cause  to  be  set  or 
placed,  or  to  be  continued  set  or  placed,  from  sunset  to  sunrise,  any 
spring-gun,  man-trap,  or  other  engine  which  shall  be  set  or  placed,  or 
caused,  or  continued  to  be  set  or  placed,  in  a  dwelling-house,  for  the 
protection  thereof.' 


1196  TELEGRAPHS,   INJURIES   TO. 


*9(391  »TELEGRAPHS,  INJURIES  TO. 

By  the  24  &  25  Vict.  c.  97,  s.  37,  "  whosoever  sliall  unlawfully 
and  maliciously  cut,  break,  throw  down,  destroy,  injure,  or  remove 
any  battery,  maehinery,  wire,  cable,  j)ost,  or  other  matter  or  thing 
whatsoever,  being  part  of  or  being  used  or  employed  in  or  about  any 
electric  or  magnetic  telegraph,  or  in  the  working  thereof,  or  shall 
unlawfully  and  maliciously  prevent  or  obstruct  in  any  manner  what- 
soever the  sending,  conveyance,  or  delivery  of  any  communication  by 
any  such  telegra[)h,  shall  be  guilty  of  a  misdemeanor,  and  being 
convicted  thereof  shall  be  liable,  at  the  discretion  of  the  court,  to  be 
imprisoned  for  any  term  not  exceeding  two  years,  with  or  without 
hard  labor  :  provided  that  if  it  shall  appear  to  any  justice,  on  the 
examination  of  any  person  charged  with  any  offence  against  this 
section,  that  it  is  not  expedient  to  the  ends  of  justice  that  the  same 
should  be  prosecuted  by  indictment,  the  justice  may  proceed  sum- 
marily to  hear  and  determine  the  same,  and  the  olfender  shall  on 
conviction  thereof,  at  the  discretion  of  the  justice,  either  be  com- 
mitted to  the  comiuon  gaol  or  house  of  correction,  there  to  be  im- 
prisoned only,  or  to  be  imprisoned  and  kept  to  hard  labor,  for  any 
term  not  exceeding  three  months,  or  else  shall  forfeit  and  pay  such 
sum  of  money  not  exceeding  ten  pounds,  as  to  the  justices  shall  seem 
meet." 

By  s.  38  attempts  to  commit  any  of  the  offences  mentioned  in  the 
above  section  may  be  dealt  with  summarily. 


TELEGRAPH   MESSAGES.  1197 


*TELEGRAPH  MESSAGES.  [*970 

By  the  31  &  32  Vict.  c.  110,  s.  20,  "any  person  having  official 
duties  connected  with  the  Post  Office,  or  acting  on  behalf  of  the  Post- 
master-General, who  shall,  contrary  to  his  duty,  disclose,  or  in  any 
way  make  known  or  intercept  the  contents  or  any  part  of  the  contents 
of  any  telegraph  messages,  or  any  message  intrusted  to  the  Postmaster- 
General  for  the  purpose  of  transmission,  shall,  in  England  and  Ireland, 
be  guilty  of  a  misdemeanor,  and  in  Scotland  of  a  crime  and  offi?nce, 
and  shall  upon  conviction  be  subject  to  imprisonment  for  a  term  not 
exceeding  twelve  calendar  months ;  and  the  Postmaster-General  shall 
make  regulations  to  carry  out  the  intentions  of  this  section,  and  to 
prevent  the  improper  use,  by  any  person  in  his  employment  or  acting 
on  his  behalf,  of  any  knowledge  he  may  acquire  of  the  contents  of 
any  telegraphic  message." 

By  sect.  21,  "  In  every  case  where  an  offisnce  shall  be  committed 
in  respect  of  a  telegraphic  message  sent  by  or  intrusted  to  the  Post- 
master-General it  shall  be  lawful  and  sufficient  in  the  indictment  or 
criminal  letters  to  be  preferred  against  the  offender  to  lay  the  prop- 
erty of  such  telegraphic  message  in  her  Majesty's  Postmaster- 
General,  without  specifying  any  further  or  other  name,  addition,  or 
description  whatsoever,  and  it  shall  be  not  necessary  in  the  indict- 
ment or  criminal  letters  to  allege  or  to  prove  upon  the  trial  or  other- 
wise that  the  telegraphic  message  was  of  any  value,  and  in  any  indict- 
ment or  in  any  criminal  letters  to  be  preferred  against  any  person 
employed  under  the  Post  Office  for  any  offi^nce  committed  under  this 
Act  it  shall  be  lawful  and  sufficient  to  state  and  allege  that  such 
offijnder  was  employed  under  the  Post  Office  at  the  time  of  the  com- 
mitting'of  such  offi^nce,  without  stating  further  the  nature  or  partic- 
ulars of  his  employment." 

By  the  32  &  33  Vict.  c.  73,  s.  23,  "  Every  written  or  printed  mes- 
sage or  coraniunieation  delivered  at  a  post-office  for  the  purpose  of 
being  transmitted  by  a  postal  telegraph,  and  every  transcript  thereof 
made  by  any  person  acting  in  pursuance  of  the  orders  of  the  Post- 
master-General, shall  be  a  post-letter  within  the  meaning  of  an  Act 
passed  in  the  first  year  of  the  reign  of  her  present  JMajesty,  c.  36  ; 
provided  always  that  nothing  in  this  Act  contained  shall  have  the 
effect  of  relieving  any  officer  of  the  Post  Office  from  any  liability 
which  would  but  for  the  passing  of  this  Act  have  attached  to  a  tele- 
graph company,  or  to  any  other  company  or  person,  to  produce  in 
any  court  of  law,  when  duly  required  so  to  do,  any  such  written  or 
printed  message  or  communication." 

By  sect.  24,  "'The  Telegraph  Act,  1868'  (31  &  32  Vict.  c.  110, 
supra)  and  this  Act  shall  be  '  Post  Office  Acts,'  and  the  provisions 
contained  therein  respectively  shall  be  '  Post  Office  Laws '  within  the 
meaninc;  of  the  1  Vict.  c.  36."     See  ante,  tit.  "  Post  Office." 


1198  TENANTS   AND   LODGERS. 


^971] 


♦TENANTS  AND  LODGERS, 


Injuries  committed  by  tenants  or  lodgers.     By  the  24  &  25 

Vict.  c.  97,  s.  1 3,  "  wliosoGver,  being  possessed  of  any  dwelling-house 
or  other  bnilding,  or  part  of  any  dwelling-honse  or  other  building, 
held  for  any  term  of  years  or  less  term,  or  at  will,  or  held  over  after 
the  termination  of  any  tenancy,  shall  unlawfully  and  maliciously  pull 
down  or  demolish,  or  begin  to  pull  down  or  demolish,  the  same  or 
part  thereof,  or  shall  unlawfully  and  maliciously  pull  down  or  sever 
from  the  freehold  any  fixture  being  fixed  in  or  to  such  dwelling-house 
or  building,  or  part  of  such  dwelling-house  or  building,  shall  be  guilty 
of  a  misdemeanor." 

Larceny  by  tenant  or  lodger.  By  the  24  &  25  Vict.  c.  96,  s.  74, 
"  whosoever  shall  steal  any  chattel  or  fixture  let  to  be  used  by  him  or 
her  in  or  with  any  house  or  lodging,  whether  the  contract  shall  have 
been  entered  into  by  him  or  her  or  by  her  husband,  or  by  any  person 
on  behalf  of  him  or  her  or  her  husband,  shall  be  guilty  of  felony,  and 
being  convicted  thereof  shall  be  liable,  at  the  discretion  of  the  court, 
to  be  imprisoned  for  any  term  not  exceeding  two  years,  with  or  with- 
out hard  labor,  and  with  or  without  solitary  confinement,  and,  if  a 
male  under  the  age  of  sixteen  years,  with  or  without  whipping ;  and 
in  case  the  value  of  such  chattel  or  fixture  shall  exceed  the  sum  of  five 
pounds,  shall  be  liable,  at  the  discretion  of  the  court,  to  be  kept  in 
penal  servitude  for  any  term  not  exceeding  seven  years  and  not  less 
than  three  years,  or  to  be  imjirisoned  for  any  term  not  exceeding  two 
years,  with  or  without  hard  labor,  and  Avith  or  without  solitary  con- 
finement, and,  if  a  male  under  the  age  of  sixteen  years,  with  or  with- 
out whipping;  and  in  every  case  of  stealing  any  chattel  in  this  section 
mentioned  it  shall  be  lawful  to  prefer  an  indictment  in  the  common 
form  as  for  larceny ;  and  in  ev^ery  case  of  stealing  any  fixture  in  this 
section  mentioned  to  prefer  an  indictment  in  the  same  form  as  if  the 
oiFender  were  not  a  tenant  or  lodger ;  and  in  either  case  to  lay  the 
property  in  the  owner  or  person  letting  to  hire." 


THREATS.  1199 


*THREATS. 


[*972 


PAGE 

Sending  letters  threatening  to  murder        •..«««  972 

demanding  property  with  menaces        ....  972 

Demanding  property  witli  menaces  with  intent  to  steal     .        .        .  972 
Sending  letters  threatening  to  accuse  of  crime  with  intent  to  extort 

money 973 

Accusing  or  threatening  to  accuse  with  intent  to  extort    .        .        .  973 

Inducing  a  person  by  threats  to  execute  deed,  etc 973 

Immaterial  from  whom  menaces  proceed    ..•.,,  974 

Sentling  letters  threatening  to  burn  or  injure  property .        .        .        .  974 

Threatening  to  publish  a  libel  with  intent  to  extort  ....  974 

Proof  of  sending  or  delivering  the  letter  or  writing      ....  974 

Proof  of  the  demand ,  975 

Proof  of  the  threat 977 

Demanding  with  menaces  under  s.  45  .        •        .        .        ,        ,        .  978 

Proof  of  the  threat — to  accuse  of  an  infamous  crime     ....  978 

Matter  of  defence 979 

Sending  letters  threatening  to  murder.  By  the  24  &  25  Vict.  c. 
100,  s.  16,  "whosoever  shall  maliciously  send,  deliver,  or  utter,  or 
directly  or  indirectly  cause  to  be  received,  knowing  the  contents 
thereof,  any  letter  or  writing  threatening  to  kill  or  murder  any  per- 
son, shall  be  guilty  of  felony,  and  being  convicted  thereof  shall  be 
liable,  at  the  discretion  of  the  court,  to  be  kept  in  penal  servitude  for 
any  term  not  exceeding  ten  years,  and  not  less  than  three  [now  five] 
years,  or  to  be  imprisoned  for  any  terra  not  exceeding  two  years,  with 
or  without  hard  labor,  and  with  or  without  solitary  confinement,  and, 
if  a  male,  under  the  age  of  sixteen  years,  with  or  without  whipping." 

Sending  letters  demanding  property  with  menaces.     By  the  24 

&  25  Vict.  c.  96,  s.  44,  "  whosoever  shall  send,  deliver,  or  utter,  or 
indirectly  cause  to  be  received,  knowing  the  contents  thereof,  any  letter 
or  writing  demanding  of  any  person  with  menaces,  and  without  any 
reasonable  and  probable  claim,  any  property,  chattel,  money,  valuable 
security,  or  other  valuable  thing,  shall  be  guilty  of  felony,  and 
being  convicted  thereof  shall  be  liable,  at  the  discretion  of  the  court,  to 
be  kept  in  penal  servitude  for  life,  or  for  any  term  not  less  than  three 
[now  five]  years,  or  to  be  imprisoned  for  any  term  not  exceeding  two 
years,  with  or  without  hard  labor,  and  with  dr  without  solitary  con- 
finement, and,  if  a  male  under  the  age  of  sixteen  years,  with  or  with- 
out whipping." 

Demanding  property  with  menaces  with  intent  to  steal.  By  s. 
45,  "  whosoever  shall  with  menaces  or  by  force  demand  any  property, 
chattel,  money,  valuable  security,  or  other  valuable  thing  of  any 
*person,  with  intent  to  steal  the  same,  shall  be  guilty  of  fcl-  r;)cq7q 
ony,   and  being  convicted  thereof  shall  be  liable,  at  the  dis-  ^ 


1200  THREATS. 

cretion  of  the  court,  to  be  kept  in  penal  servitude  for  the  term  of 
three  [now  five]  years,  or  to  be  imprisoned  for  any  term  not  exeeed- 
ing  two  years,  with  or  without  hard  labor,  and  with  or  without 
solitary  confinement." 

Sending  letters  threatening  to  accuse  of  crime  with  intent  to 
extort  money.  By  s.  46,  "  whosoever  shall  send,  deliver,  or  utter, 
or  directly  or  indirectly  cause  to  be  received,  knowing  the  contents 
thereof,  any  letter  or  writing  accusing,  or  threatening  to  accuse,  any 
other  person  of  any  crime  pimishable  by  la^v  with  death  or  penal  ser- 
vitude for  not  less  than  seven  years,  or  of  any  assault  with  intent  to 
commit  any  rape,  or  of  any  attempt  or  endeavor  to  commit  any  rape, 
or  of  any  infamous  crime  as  hereinafter  defined,  with  a  view  or  intent 
in  any  of  such  cases  to  extort  or  gain  by  means  of  such  letter  or  writ- 
ing any  property,  chattel,  money,  valuable  security,  or  other  valuable 
thing,  from  any  person,  shall  be  guilty  of  felony,  and  being  convicted 
thereof  shall  be  liable,  at  the  discretion  of  the  court,  to  be  kept  in 
penal  servitude  for  life,  or  for  any  term  not  less  than  three  [now  five] 
years,  or  to  be  imprisoned  for  any  term  not  exceeding  two  years,  with 
or  without  hard  labor,  and  with  or  without  solitaiy  confinement,  and, 
if  a  male  under  the  age  of  sixteen  years,  with  or  without  whipping ; 
and  the  abominable  crime  of  buggery,  committed  either  with  man- 
kind or  with  beast,  and  every  assault  with  intent  to  commit  the 
said  abominable  crime,  and  every  attempt  or  endeavor  to  com- 
mit the  said  abominable  crime,  and  every  solicitation,  persuasion, 
promise,  or  threat  offered  or  made  to  any  person  whereby  to  move 
or  induce  such  person  to  commit  or  permit  the  said  abominable 
crime,  shall  be  deemed  to  be  an  infamous  crime  within  the  meaning  of 
this  Act." 

Accusing  or  threatening  to  accuse  with  intent  to  extort.  By  s. 
47,  "  whosoever  shall  accuse  or  threaten  to  accuse,  either  the  person  to 
whom  such  accusation  or  threat  shall  be  made  or  any  other  person,  of 
any  of  the  infamous  or  other  crimes  lastly  hereinbefore  mentioned, 
with  the  view  or  intent  in  any  of  the  cases  last  aforesaid  to  extort  or 
gain  from  such  person  so  accused  or  threatened  to  be  accused,  or  from 
any  other  person,  any  property,  chattel,  money,  valuable  security,  or 
other  valuable  thing,  shall  be  guilty  of  felony,  and  being  convicted 
thereof  shall  be  liable,  at  the  discretion  of  the  court,  to  be  kept  in 
penal  servitude  for  life,  or  for  any  term  not  less  than  three  [now  five] 
years,  or  to  be  imprisoned  for  any  term  not  exceeding  two  years,  with 
or  without  hard  labor,  and,  if  a  male  under  the  age  of  sixteen  years, 
with  or  without  whipping." 

Inducing  a  person  by  threats  to  execute  deed,  etc.     By  s.  48, 

"  whosoever  with  intent  to  defraud  or  injure  any  other  person,  shall 
by  any  unlawful  violence  to,  or  restraint  of,  or  threat  of  violence  to 
or  restraint  of  the  person  of  another,  or  by  accusing  or  threatening  to 
accuse  any  person  of  any  treason,  felony,  or  infamous  crime,  as  here- 


THEEATS.  1201 

inbefore  defined,  compel  or  induce  any  person  to  execute,  make,  ac- 
cept, indorse,  alter,  or  destroy  the  whole  or  any  part  of  any  valuable 
security,  or  to  write,  impress,  or  affix  his  name  or  the  name  of  any 
other  person  or  of  any  company,  firm,  or  co-partnership,  or  the  seal 
of  any  body  corporate,  company,  or  society,  upon  or  to  any  paper  or 
*parchment,  in  order  that  the  same  may  be  afterwards  made  or  r:^QfjA 
converted  into,  or  used  or  dealt  with  as  a  valuable  security,  L 
shall  be  guilty  of  felony,  and  being  convicted  thereof  shall  be  liable, 
at  the  discretion  of  the  court,  to  be  kept  in  penal  servitude  for  life,  or 
for  any  term  not  less  than  three  [now  five]  years,  or  to  be  imprisoned 
for  any  term  not  exceeding  two  years,  with  or  without  hard  labor,  and 
with  or  without  solitary  confinement." 

Immaterial  from  whom  menaces  proceed.  By  s.  49,  "  it  shall 
be  immaterial  whether  the  menaces  or  threats  hereinbefore  mentioned 
be  of  violence,  injury,  or  accusation  to  be  caused  or  made  by  the  offender 
or  by  any  other  person." 

Sending  letters  threatening  to  burn  or  injure  property.     By  the 

24  &  25  Vict.  c.  97,  s.  50,  "  whosoever  shall  send,  deliver,  or  utter, 
or  directly  or  indirectly  cause  to  be  received,  knowing  the  contents 
thereof,  any  letter  or  writing  threatening  to  burn  or  destroy  any  house, 
barn,  or  other  building,  or  any  rick  or  stack  of  grain,  hay,  or  straw, 
or  other  agricultural  produce,  or  any  grain,  hay,  or  straw,  or  other 
agricultural  produce  in  or  under  any  building,  or  any  ship  or  vessel, 
or  to  kill,  maim,  or  wound  any  cattle,  shall  be  guilty  of  felony,  and 
being  convicted  thereof  shall  be  liable,  at  the  discretion  of  the  court, 
to  be  kept  in  penal  servitude  for  any  term  not  exceeding  ten  years  and 
not  less  than  three  [now  five]  years,  or  to  be  imprisoned  fi)r  any  term 
not  exceeding  two  years,  with  or  without  hard  labor,  and  with  or  with- 
out solitary  confinement,  and,  if  a  male  under  the  age  of  sixteen  years, 
with  or  without  whipping." 

Threatening  to  publish  a  libel  with  intent  to  extort.  By  the 
6  &  7  Vict.  c.  96  (Lord  Campbell's  Act),  an  Act  to  amend  the  law 
respecting  defamatory  words  and  libels,  s.  3,  "  If  any  person  shall 
publish,  or  threaten  to  publish,  any  libel  upon  any  other  person,  or 
shall,  directly  or  indirectly,  threaten  to  print  or  publish,  or  shall, 
directly  or  indirectly,  propose  to  abstain  from  printing  or  publishing, 
or  shall,  directly  or  indirectly,  offer  to  prevent  the  printing  or  pub- 
lishing, of  any  matter  or  thing  touching  any  other  person,  with  intent 
to  extort  any  money,  or  security  for  money,  or  any  valuable  thing 
from  such  or  any  other  person,  or  with  intent  to  induce  any  person  to 
confer  or  procure  for  any  person  any  appointment  or  office  of  profit  or 
trust,  every  such  offender,  on  being  convicted  thereof,  shall  be  liable 
to  be  imprisoned,  with  or  Avithout  hard  labor,  in  the  common  gaol  or 
house  of  correction,  for  any  term  not  exceeding  three  years  :  provided 
always,  that  nothing  herein  contained  shall  iu  any  manner  alter  or 
76 


1202  THREATS. 

affect  any  law  now  in  force,  in  respect  of  the  sending  or  delivery  of 
threatening  letters  or  writings." 

Proof  of  the  sending  or  delivering   of    the  letter  or  writing. 
The  sending  or  delivering  of  the  letter  need   not  be  imnicdiutely  by 
the  prisoner  to  the  prosecntor ;  if  it  be  proved  to  be  sent  or  delivered 
by  his  means  ami  directions  it  is  sufficient.     Upon  an   indictment  on 
the  rej)ealed  statute  27  Geo.  2,  c.  15,  for  sending  a  threatening   letter 
to  AV^illiam  Kirby,  it  appeared  that  the  threats  were,  in  fact,  directed 
against  two  persons  named   llodwell  and  Brook.     Kirby  received  the 
letter  by  the  post.     The  judges  held  that  as  Kirby  was  not  threatened, 
the  judgment  must  be  arrested,  but  they  intimated  that  if  Kirby  had 
^p__-,    *delivered  the  letter  to  Rodwell  or  Brook,  and  a  jury  should 
J    think  that  the  prisoner  intended  he  should   so  deliver  it,  this 
would  be  a  sending  by  the  prisoner  to  Rodwell  or  Brook,  and  would 
support  a  charge  to  that  effect.     R,  v.  Paddle,   Russ.   &  Ry.   484. 
Where  the  prisoner  dropped  the  letter  upon  the  steps  of  the  prosecu- 
tor's house,  and  ran  away,  Abbott,  C.  J.,  left  it  to  the  jury  to  say, 
whether  they  thought  the  prisoner  carried  the  letter  and  dropped  it, 
meaning  that  it  should  be  conveyed  to  the   prosecutor,  and   that  he 
should  be  made  acquainted  with  its  contents,  directing  them  to   find 
him  guilty  if  they  were  of  opinion   in   the  affirmative.     R.  v.  Wag- 
staif,  Russ.  &  Ry.  398.     So  in  a  case  upon  the  9  Geo.  1,  c.  22  (re- 
pealed), for  sending  a  letter  demanding  money.     Yates,  J.,  observed, 
that  it  seemed  to  be  very  immaterial  whether  the  letter  were  sent 
directly  to  the  prosecutor,  or  were  put  into  a  more  oblique  course  of 
conveyance  by  which  it  might  finally  come  to  his  hands.     The  fact 
was,  that  the  prisoner  dropped  the  letter  into  a  vestry-room,  which  the 
prosecutor  frequented  every  Sunday  morning  before  the  service  began, 
where  the  sexton  picked  it  up,  and  delivered  it  to  him.     R.  v.  Lloyd, 
2  East,  P.  0.  1122.     In  a  note  upon  this  case,  Mr.  East  says  qiicere, 
'  whether,  if  one  intentionally  put   a  letter  in  the  place  wdiere  it  is 
likely  to  be  seen  and  read  by  the  party  for  whom  it  is  intended,  or  to 
be  found  by  some  other  person  who,  it  is  expected,  will  forward  it  to 
such  party,  this  may  not  be  said  to  be  a  sending  to  such  party  ?     The 
same  evidence  was  given  in  R.  v.  Springett  (2  East,  P.  C.  1115),  in 
support  of  the  allegation  of  sending  a  threatening  letter  to  the  prose- 
cutor, and  no  objection  was  taken  on  that  ground.     2  East,  P.  C. 
1123  (w).     So  where  the  evidence  was  that  the  letter  was  in  the  hand- 
writing of  the  prisoner,  who  had  sent  it  to  the  post-office,  whence  it 
was  delivered  in  the  usual  manner,  no  objection  was  made.     R.  v. 
Hemmings,  2  East,  P.  C.  1116. 

An  indictment  fx)r  sending  a  threatening  letter  charged  G.  with 
sending  to  R.,  and  threatening  to  burn  houses,  the  property  of  B., 
who  was  R.'s  tenant ;  it  was  proved  that  G.  dropped  the  letter  in  a 
public  road  near  R.'s  house,  that  A.  found  it,  and  gave  it  to  H.,  who 
opened  it,  read  it,  and  gave  it  to  E.,  who  showed  it  both  to  B.  and  R. 
The  court  held  that  this  was  a  sending  within  the  statute,  and  that  the 
conviction  was  good.     R.  v.  Grimwade,  1  Den.  C.  C.  R._30. 


THREATS.  1203 

Affixing  a  threatening  letter  on  a  gate  in  a  public  higliway,  near 
wliich  tiic  prosecutor  would  be  likely  to  pass  from  his  house,  is  some 
evidence  to  go  to  the  jury  of  a  sending  of  a  letter  to  him.  Per  Cress- 
well,  J.,  R.  V.  Williams,' 1  Cox,  C.  C.  16. 

The  slightly  altered  wording  of  the  present  statutes  might  perhaps 
facilitate  the  proof  in  these  cases. 

^Yhere  there  is  no  person  in  existence  of  tlie  precise  name  which  the 
letter  bears  as  its  address,  it  is  a  cpiestion  for  the  jury  whether  the  party 
into  whose  hands  it  falls  was  really  the  one  for  whom  it  was  intended. 
Per  Mauie,  J.,  11.  v.  Carruthers,  1  Cox,  C.  C.  138. 

Proof  of  the  demand.  On  an  indictment  for  demanding  money 
with  menaces,  there  must  be  evidence  that  the  prisoner  demanded 
some  chattel,  money,  or  valuable  security ;  but  it  does  not  appear  to 
be  necessary  that  the  demand  should  be  made  in  words,  if  the  con- 
duct of  the  prisoner  amount  to  a  demand  in  fact.  Where  the  pris- 
oners seized  the  prosecutor,  and  one  of  them  said,  "  Not  a  word,  or  I 
will  blow  your  brains  out,"  and  the  other  repeated  the  words,  and 
*appeared  to  be  searching  for  some  offensive  weapon  in  his  r^q^n. 
pocket,  when,  upon  the  prosecutor  seizing  him,  the  other  pris-  l 
oner  ran  away  without  anything  more  being  said  ;  on  an  objection  that 
this  was  no  demand  (within  the  old  statute  7  Geo.  2,  c.  21,  which 
enacts  that  if  any  person  shall,  by  menaces,  or  by  any  forcible  or  vio- 
lent manner,  demand  any  money,  etc.,  with  intent,  etc.),  the  court  said 
that  an  actual  demand  was  not  necessary,  and  that  this  was  a  fact  for 
the  jury,  under  all  the  circumstances  of  the  case.  The  case  was  after- 
wards disposed  of  on  the  form  of  the  indictment.  E,.  v.  Jackson,  1 
Leach,  267 ;  1  East,  P.  C.  419 ;  see  5  T.  R.  169. 

In  another  case  upon  the  same  statute,  but  upon  an  indictment  for 
an  assault,  with  an  intent  to  rob,  the  circumstances  were  that  the  pris- 
oner did  not  make  any  demand,  or  offer  to  demand  the  prosecutor's 
money  ;  but  only  held  a  pistol  in  his  hand  towards  the  prosecutor, 
who  was  a  coachman  on  his  box  ;  Willes,  C.  J.,  said,  "  a  man  who  is 
dumb  may  make  a  demand  of  money,  as  if  he  stop  a  person  on  the 
highway,  and  put  his  hand  or  hat  into  the  carriage,  or  the  like  ;  but 
in  this  case  the  prisoner  only  held  a  pistol  to  the  coachman,  and  said 
to  him  nothing  but  ^  Stop.'  That  was  no  such  demand  of  money  as 
the  Act  requires."  R.  u.  Parfait,  1  East,  P.  C.  416.  Upon  this  Mr. 
East  justly  remarks,  that  the  fact  of  stopping  another  on  the  highway, 
by  presenting  a  pistol  at  his  breast,  is,  if  unexplained  by  other  cir- 
cumstances, sufficient  evidence  of  a  demand  to  go  to  a  jury.  The 
unfortunate  sufferer  understands  the  language  but  too  well ;  and  why 
must  courts  of  justice  be  supposed  ignorant  of  that  which  common 
experience  teaches  to  all  men?  1  East,  P.  C.  417  ;  1  Russ.  by  Greav. 
767. 

A  mere  request,  such  as  asking  charity,  without  imposing  any 
conditions,  does  not  come  within  the  sense  or  meaning  of  the  word 
"demand."     R.  v.  Robinson,  2  Leach,  749  ;  2  East,  P.  C.  1110. 

The    prisoner  was   indicted   for  sending  a  letter  to   the  prose- 


1204  THREATS. 

cutor,   demanding  money,   with   menaces.     The   letter   was   as   fol- 
lows : — 

"  Sir,  as  you  are  a  gentleman  and  highly  respected  by  all  who  know 
you,  I  think  it  is  my  duty  to  inform  you  of  a  conspiracy.  There  is 
a  few  young  men  who  have  agreed  to  take  from  you  personally  a 
sum  of  money,  or  injure  your  property.  I  mean  to  say  your  building 
property.  In  the  maimer  they  have  j)lanncd,  this  dreadful  undertak- 
ing would  be  a  most  serious  loss.  Tiicy  have  agreed,  etc.  Sir,  I 
could  give  you  every  particular  information  how  you  may  preserve 
your  property  and  your  person,  and  how  to  detect  and  secure  the  of- 
fenders. Sir,  if  you  will  lay  me  a  purse  of  thirty  sovereigns  upon 
the  garden  hedge,  close  to  Mr.  T.'s  garden  gate,  I  will  leave  a  letter 
in  the  place  to  inform  you  when  this  is  to  take  place.  I  hope  you  wont 
attempt  to  seize  me,  when  I  come  t(^  take  up  the  money  and  leave  the 
note  of  information.  Sir,  you  will  find  1  am  doing  you  a  most  serious 
favor,  etc.,  etc."  Bolland,  B.,  doubted  whether  this  letter  contained 
either  a  menace  or  a  demand,  and  reserved  the  point  for  the  opinion  of 
the  jud(>-es,  who  held  tliat  the  conviction  was  wrong.  R.  v.  Pickford, 
4  C.  &"?.  227,  19  E.  C.  L. 

Where  the  prisoner  threatened  to  accuse  the  prosecutor's  son  of  a 
crime  unless  the  ])rosecutor  would  buy  a  mare  of  him,  and  there  was 
no  evidence  that  the  mare  was  not  worth  the  price  asked,  it  was  held 
to  be  a  threat  with  intent  to  extort  within  section  47.  E.  v.  Redman, 
35  L.  J.,  M.  C.  89 ;  L.  R.  1  C.  C.  R.  12. 

Where  the  prisoner  obtained  by  threats  a  larger  sum  than  was  due 
Q-M-,  *for  knife  grinding,  he  was  held  guilty  of  larceny,  R.  v.  Lov- 
^' '-J   ell,  8  Q,  B,  D,  185  ;  50  L.  J,,  M,  C,  91.     See  ante,  G64. 


* 


Proof  of  the  threat.  Whether  or  not  the  letter  amounts  to  a  threat 
to  kill  or  murder,  etc.,  within  the  words  of  the  statute,  is  a  question 
for  the  jury.  The  prisoner  was  indicted  (under  the  repealed  statute 
27  Geo.  2,  c.  15)  for  sending  a  letter  to  the  prosecutor,  threatening  to 
kill  or  murder  him.     The  letter  was  as  follows  : — 

<'  Sir — I  am  sorry  to  find  a  gentleman  like  yon  would  be  guilty  of 
taking  M'Allester's  life  away  for  the  sake  of  two  or  three  guineas,  but 
it  will  not  be  forgot  by  one  who  is  but  just  come  home  to  revenge  his 
cause.  This  you  may  depend  upon  ;  whenever  I  meet  you  I  will  lay 
my  life  for  him  in  this  cause.  I  follow  the  road,  though  I  have  been 
out  of  London  ;  but  on  receiving  a  letter  from  M'Allester,  before  he 
died,  for  to  seek  revenge,  I  am  come  to  town. — I  remain  a  true  friend 
to  M'Allester.  J.  W." 

Hotham,  B.,  left  it  to  the  jury  to  consider  whether  this  letter  con- 
tained in  the  terms  of  it  an  actual  threatening  to  kill  or  murder, 
directing  them  to  acquit  the  prisoner  if  they  thought  the  Avoi'ds  might 
import  anything  less  than  to  kill  or  murder.  The  jury  having  f^und 
the  prisoner  guilty,  on  a  case  reserved,  the  jndges  were  of  opinion  that 
the  conviction  was  right.  R.  v.  Gird  wood,  1  Leach,  142 ;  2  East,  P. 
C.  1121. 


THREATS.  1205 

The  prisoners  were  indicted  (under  the  repealed  statute  27  Geo.  2, 
c.  15),  for  sendint^  to  the  prosecutor  the  following  letter : — 

"  Sir — I  am  very  sorry  to  acquaint  you,  tliat  wc  are  determined  to 
set  your  mill  on  fire,  and  likewise  to  do  all  the  public  injury  we  are 
able  to  do  you,  in  all  your  farms  and  seteres  [Icttings]  whi(;h  you  are 

in  possession   of,  without    you   on   next day    release    that    Ann 

Wood  which  you  jnit  in  confinement.  Sir,  Ave  mention  in  a  few 
lines,  and  we  hope  if  you  have  any  regard  for  your  wife  and  family, 
you  will  take  our  mcaniug  without  anytiiing  further ;  and  if  you  do 
not,  we  will  persist  as  far  as  we  possibly  can  ;  so  you  may  lay  your 
hand  at  your  heart,  and  strive  your  uttermost  ruin.  I  shall  not  men- 
tion nothing  more  to  you,  until  such  times  as  you  find  the  few  lines 
a  fact  with  our  respect.     So  no  more  at  this  time  from  me. 

"R.  R." 

It  was  proved  that  this  was  in  the  handwriting  of  one  of  the  pris- 
oners, and  that  it  was  thrown  by  the  other  prisoner  into  the  pros- 
ecutor's yard,  when  it  was  taken  by  a  servant  and  delivered  to  the 
prosccuto]'.  The  prosecutor  swore  that  he  had  a  share  in  a  mill  three 
years  before  this  letter  was  written,  but  had  no  mill  at  that  time  ; 
that  he  held  a  farm  when  the  letter  was  written  and  came  to  his 
hands,  with  several  buildings  upon  it.  On  a  case  reserved,  it  was 
agreed  by  the  judges,  that  as  the  prosecutor  had  no  such  property 
at  the  time,  as  the  mill  which  Avas  threatened  to  be  burnt,  that  part 
of  the  letter  must  be  laid  out  of  the  question.  As  to  the  rest.  Lord 
Kenyon,  C.  J.,  and  BuDer,  J.,  were  of  opinion,  that  the  letter  must  be 
understood  as  also  importing  a  threat  to  burn  the  prosecutor's  farm- 
house and  buildings,  but  the  other  judges,  not  thinking  that  a  neces- 
sary construction,  the  conviction  AA'as  held  Avrong,  and  a  pardon 
recommended.     R.  v.  Jepson  and  Springett,  2  East,  P.  C.  1115. 

*The  prisoners  Avere  diarged  in  one  count  Avith  sending  a  let-  ^*Q^To 
ter  to  the  prosecutor,  threatening  to  kill  and  murder  him,  and  ^ 
a  second  count  Avith  threatening  to  burn  and  destroy  his  house,  stacks, 
etc.  The  Avriting  Avas  as  follows  : — ''  Starve  Gut  Butcher,  if  you  don't 
go  on  better  great  Avill  be  the  consequence ;  what  do  you  think  you  must 
alter  (or)  must  be  set  on  fire ;  this  came  from  London,  i  say  your 
nose  is  as  long  rod  gffg  sharp  as  a  flint  1835.  You  ought  to  pay  yoi:r 
men."  The  jury  negatived  the  threat  to  put  the  prosecutor  to  death, 
but  found  that  the  letter  threatened  to  fire  his  houses,  etc.  Lord 
Denman,  C.  J.,  had  some  doubt  Avhether  the  question  ought  to  have 
been  left  to  the  jnry,  and  Avhether  the  latter  could  be,  in  point  of  law, 
a  threatening  letter  to  the  effect  found.  On  the  case  being  considered 
by  the  judges,  they  held  the  conviction  good  after  verdict.  R.  v. 
Tyler,  1  Moo.  C.  C.  428. 

The  rule  that  a  threat  is  not  of  a  criminal  character,  unless  it  be 
such  as  may  overcome  the  ordinary  free  will  of  a  firm  man,  has 
reference  to  the  general  nature  of  the  evil  threatened,  and  not  to  the 
probable  effect  of  the  threat  on  the  mind  of  the  particular  party  ad- 
dressed.    R.  V.  Smith,  1  Den.  C.  C.  R.  510  ;  19  L.  J.,  M.  C.  80. 


1206  THREATS. 

Demanding  with  menaces  under  s.  45.  Witli  respect  to  the  of- 
fence (leiimnding  property  with  menaces  with  intent  to  steal  (s,  45),  it 
has  been  held  that  the  tiireat  must  be  of  a  nature  to  produce  in  a 
reasonable  man  some  degree  of  alarm  or  bodily  fear.  The  degree  of 
such  alarm  may  vary  in  different  cases.  The  essential  matter  is  that  it 
be  of  a  nature  and  extent  to  unsettle  the  mind  of  the  person  on  whom 
it  operates,  and  take  away  from  his  acts  that  element  of  free  voluntary 
action,  which  alone  constitutes  consent.  The  menace,  although  not 
in  itself  of  this  character,  may  be  made  with  such  gesture  and  de- 
meanor, or  with  such  unnecessarily  violent  acts,  or  under  such  circum- 
stances of  intimidation  as  to  have  that  effect.  R.  v.  Walton,  L.  &  C. 
298. 

It  is  no  objection  that  the  money  was  actually  obtained,  or  that  it 
was  obtained  by  a  threat  to  accuse  of  an  offence  unknown  to  the  law. 
R.  V.  Robertson,  L.  &  C.  483  ;  34  L.  J.,  M.  C.  35. 

Proof  of  the  threat — to  accuse  of  infamous  crimes.  If  the  party 
has  been  already  accused,  threatening  to  procure  witnesses  to  support 
that  accusation  is  not  within  the  statute.  "  It  is  one  tiling  to  accuse, 
and  another  to  procure  witnesses  to  support  a  charge  already  made  ; 
this  is  at  most  a  threat  to  support  it  by  evidence."  Per  Bayley,  J., 
R.  V.  Gill,  York  Sura.  Ass.  1829.  Greenwood's  Stat.  191  (n),  1  Lewin, 
C.  C.  305.  An  indictment  upon  the  repealed  statute  4  Geo.  4.  c.  54, 
s.  5  (which  used  the  words  "  threaten  to  accuse  "),  charged  the  pris- 
oners with  "  charging  and  accusing  J.  N.,  and  with  menacing  and 
threatening  to  prosecute  J.  N."  Upon  an  objection  taken  that  the 
indictment  had  not  pursued  the  statute,  Garrow,  B.  (after  consulting 
Burrough,  J.),  was  of  that  opinion.  If,  he  said,  the  indictment  had 
followed  the  statute,  and  it  had  been  proved  that  the  prisoners 
threatened  to  prosecute  J.  N.,  I  should  have  left  it  to  the  jury  to 
say  whether  that  was  not  a  threatening  to  accuse  him.  R.  v.  Abgood, 
2  C.  &  P.  436,  12  E.  C.  L. 

It  was  held,  that  the  threatening  to  accuse  under  the  7  &  8  Geo.  4 
c.  29,  s.  7  (now  repealed),  in  which  the  same  words,  "  accuse  or 
threaten  to  accuse,"  were  used  as  in  the  8th  section,  need  not  have 
*Q7Q1  *^6en  a  threat  to  accuse  before  a  judicial  tribunal,  a  threat  to 
-I  charge  before  any  third  person  being  enough.  R.  v.  Robinson, 
2  Moo.  &  R.  14. 

It  must  be  shown  that  the  accusation,  made  or  threatened,  was  of  the 
nature  of  those  specified  in  the  statute.  Where  the  meaning  is  am- 
biguous, it  is  for  the  jury  to  say  whether  it  amounts  to  the  accusation 
or  threat  imputed. 

Declarations  subsequently  made  by  the  prisoner  are  also  admissible 
to  explain  the  meaning  of  a  threatening  letter.  The  ])risoner  was 
indicted  for  sending  a  letter  threatening  to  accuse  the  prosecutor  of 
an  infamous  crime.  The  prosecutor,  meeting  the  prisoner,  asked  him 
what  he  meant  by  sending  that  letter,  and  what  he  meant  by 
"  transactions  Jive  nights  following "  (a  passage  in  the  letter).  The 
prisoner  said  that  the  prosecutor  knew  what  he  meant.     The  pros- 


THREATS.  1207 

editor  denied  it,  and  the  prisoner  afterwards  said,  "  I  mean  by 
taking  indecent  liberties  with  my  person."  Tins  evidence  having 
been  received,  and  the  point  having  been  reserved  for  the  opinion  of 
the  jndges,  they  unanimously  resolved  that  the  evidence  had  been 
rightly  received.  11.  v.  Tucker,  1  Moo.  C.  C.  134.  And  see  as  to 
the  necessity  of  particularizing  in  the  indictment  the  specific  charge 
to  which  the  accusation  or  threat  refers,  and  as  to  the  evidence 
necessary  to  support  such  indictment.  K.  v,  Middleditch,  1  Den.  C. 
C.  R.  92. 

Matter  of  defence.  It  is  immaterial  whether  the  accusation  is 
true  or  not,  and  evidence  of  its  truth  will  not  be  admitted,  though  the 
prosecutor's  credit  may  be  tested  by  asking  him  in  cross-examination 
questions  suggesting  his  guilt.  R.  v.  Crackncll  (Willes,  J.),  10  Cox, 
C.  C.  408 ;  R.  V.  Menage,  3  F.  &  F.  310.  See  also  R.  v.  Richards, 
11  Cox,  C.  C.  43  ;  but  in  this  last  case  the  facts  were  that  the  prisoner 
went  to  the  prosecutor,  whom  he  accused  of  having  given  a  disease 
to  his  son,  his  son  in  fact  having  such  a  disease,  and  having  informed 
the  prisoner  of  it.  The  prisoner  at  that  time  only  demanded  payment 
of  the  doctor's  bill,  amounting  to  25s. ;  but  some  time  afterwards  the 
prisoner  went  again  to  the  prosecutor  and  threatened  to  give  him  into 
custody  unless  he  would  compromise  it  by  payment  of  100/.  Black- 
burn, J.,  left  evidence  of  the  truth  of  the  accusation  to  the  jury,  say- 
ing, that  it  was  material  in  considering  with  Avhat  intent  the  prisoner 
made  the  accusation.  If  he  made  the  accusation  at  first  without  any 
intent  to  extort  money  he  would  not  be  guilty,  and  if  afterwards 
believing  in  the  truth  of  the  accusation  he  endeavored  to  compromise 
the  matter  by  payment  of  money  (sic),  that  would  not  render  him 
guilty  of  the  offence  charged,  though  he  might  be  guilty  of  compound- 
ing a  felony.  The  report  of  the  above  case  is  very  short,  and  it 
is  submitted  that  the  additional  intent  of  compounding  a  felony  did 
not  prevent  the  existence  of  an  intent  to  extort  money.  The  intent  to 
extort  money  seems  to  have  been  amply  proved  by  a  threat  of  giving 
the  prosecutor  into  custody  if  he  would  not  pay  100/.  It  seems  (if 
the  report  is  correct)  that  the  learned  judge  thought  that  the  demand 
for  the  100/.  might  be  wholly  unconnected  with  the  accusation  which 
had  preceded  it ;  but  it  is  difficult  to  see  how  that  could  possibly  be 
the  case,  as  the  demand  was  coupled  with  a  threat  to  give  the 
prosecutor  into  custody,  which  must  have  been  practically  a  renewal 
of  the  accusation. 


1208  TRANSPOETATION — RETURNING    FROM. 


=980] 


^TRANSPORTATION— RETURNING  FROM. 


PAQB 

Punishment ,        .        ,        .        981 

Reward  to  prosecutor       ,        •        .        .        , 982       • 

By  the  5  Geo.  4,  c.  84,  s.  22,  "  if  any  offender  who  shall  have  been, 
or  shall  be  so  sentenced  or  ordered  to  be  transported  or  banished,  or 
who  shall  have  agreed,  or  shall  agree,  to  transport  or  banish  himself 
or  herself  on  certain  conditions,  either  for  life  or  any  number  of  years, 
under  the  provisions  of  this  or  any  former  Act,  shall  be  afterwards  at 
large  within  any  part  of  his  majesty's  dominit)ns,  without  some  lawful 
cause,  before  the  expiration  of  the  term  for  which  such  offender  shall 
have  been  sentenced  or  ordered  to  be  transported  or  banished,  or  shall 
have  so  agreed  to  transport  or  banish  himself  or  herself,  every  such 
offender,  so  being  at  large,  being  thereof  lawfully  convicted  [shall 
suffer  death  as  in  cases  of  felony,  without  the  benefit  of  clergy]  ;  and 
such  offender  may  be  tried  either  in  the  county  or  place  where  he  or 
she  shall  be  apprehended,  or  in  that  from  whence  he  or  she  was 
ordered  to  be  transported  or  banished ;  and  if  any  person  shall  rescue, 
or  attempt  to  rescue,  or  assist  in  rescuing,  or  in  attempting  to  rescue, 
any  such  offender  from  the  custody  of  such  superintendent  or  overseer, 
or  of  any  sheriff,  or  gaoler,  or  other  person  conveying,  removing, 
transporting,  or  reconveying  him  or  her,  or  shall  convey,  or  cause  to 
be  conveyed,  any  disguise,  instrument  for  effecting  escape,  or  arms, 
to  such  offender,  every  such  offender  shall  be  punishable  in  the 
same  manner  as  if  such  offender  had  been  confined  in  a  gaol  or  prison 
in  the  custody  of  the  sheriff  or  gaoler,  for  the  crime  of  which  such 
offender  shall  have  been  convicted  ;  and  whoever  shall  discover  and 
prosecute  to  conviction  any  such  offender  so  being  at  large  within  this 
kingdom,  shall  be  entitled  to  a  reward  of  20^.  for  every  such  offender 
so  convicted." 

By  s.  23,  in  any  indictment  against  any  offender  for  being  found 
at  large,  contrary  to  that  or  any  other  Act  now  or  thereafter  to  be 
made,  it  shall  be  sufficient  to  charge  and  allege  the  order  made  for 
the  transportation  or  banishment  of  such  offender,  without  charging  or 
alleging  any  indictment,  trial,  conviction,  judgment,  sentence,  or  any 
pardon  or  intention  of  mercy,  or  signification  thereof,  of  or  against  or 
in  any  manner  relating  to  such  offender. 

By  s.  24,  '■*■  the  clerk  of  the  court  or  other  officer  having  the  custody 
of  the  records  of  the  court  where  such  sentence  or  order  of  transporta- 
tion or  banishment  shall  have  been  passed  or  made,  shall  at  the  re- 
quest of  any  person  on  his  majesty's  behalf,  make  out  and  give  a  cer- 
tificate in  writing,  signed  by  him,  containing  the  effect  and  substance 


TRANSPORTATION — RETURNING  FROM.  1209 

only  (omitting  the  formal  part)  of  every  indictment  and  conviction 
*of  such  offender,  and  of  the  sentence  or  order  for  his  or  her  r-^.^n-i 
trans])ortion  or  banishment  (not  taking  for  tlie  same?  more  l 
tlian  i)S.  8c/.),  which  certificate  shall  be  snllicicnt  evidence  of  the  con- 
viction and  sentence,  or  order  for  the  trans j>ortat ion.  or  banishment  of 
such  offender  ;  and  every  such  certificate,  if  made  by  the  clerk  or 
officer  of  any  court  in  Great  Britain,  shall  be  received  in  evidence, 
upon  proof  of  the  signature  and  oflicial  character  of  the  person  sign- 
ing the  same ;  and  every  such  certificate,  if  made  by  the  clerk  or  offi- 
cer of  any  court  out  of  Great  Britain,  shall  be  received  in  evidence, 
if  verified  by  the  seal  of  the  court,  or  by  the  signature  of  the  judge, 
or  one  of  the  judges  of  the  court,  -without  further  proof." 

The  above  })rovisions  noAv  applv  to  sentences  for  penal  servitude. 
See  16  cfe  17  Met.  c.  99,  s.  6  ;  and  20  &  21   Vict.  c.  3. 

Upon  a  prosecution  for  this  offence,  the  prosecutor  must  prove,  1, 
the  conviction  of  the  offender,  by  prciducing  a  certificate  according  to 
the  above  section  of  the  statute  ;  2,  the  sentence  or  order  of  transpor- 
tation in  like  manner.  The  signature  and  official  character  of  the 
person  signing  the  certificate  must  be  proved.  If  the  certificate  is 
made  by  the  clerk  or  officer  of  a  court  out  of  Great  Britain,  it  is  ad- 
missible when  verified  by  the  seal  of  the  court  or  the  signature  of  the 
judge.  The  "effect  and  substance"  of  the  former  conviction  must 
be  stated  in  the  certificate  ;  merely  stating  that  the  prisoner  Mas  con- 
victed "of  felony"  is  not  sufficient.  R.  v.  Sutcliffe,  Buss.  &  By. 
469  (/()  ;  R.  V.  Watson,  Id.  468.  3,  Proof  must  then  be  given  of  the 
prisoner's  identity ;  and  4,  that  he  was  at  large  before*  the  expiration 
of  his  term. 

On  the  trial  of  an  indictment  against  a  person  for  being  at  large 
\vitliout  lawful  cause  before  the  expiration  of  his  term  of  transpor- 
tation, a  certificate  of  his  former  conviction  and  sentence  was  put  in  : 
it  j)urported  to  be  that  of  J.  G.,  "deputy  clerk  of  the  peace  "  for  the 
county  of  L.,  "  and  c;lerk  of  the  courts  of  general  quarter  sessions  of  the 
peace  holden  in  and  for  the  said  county,  and  having  the  custody  of  the 
records  of  the  courts  of  general  quarter  sessions  of  the  peace,  holden  in 
and  for  the  said  county."  It  was  jjrovcd  that  Mr.  H.  was  clerk  of 
the  peace  at  L.,  and  that  he  had  three  deputy  partners,  of  whom  J.  G., 
who  had  signed  the  certificate,  was  one,  and  that  each  of  them  acted 
as  clerk  of  the  peace ;  and  that  for  forty  years  they  had  kept  the 
sessions'  records  at  their  office.  Under  these  circumstances,  Collman, 
J.,  held  that  the  conviction  and  sentence  were  sufficiently  proved.  R. 
V.  Jones,  2  C.  &  K.  524,  61  E.  C.  L.;  see  also  R.  v.  Parsons,  L.  R., 
1  C.  C.  R.  24.  In  R.  V.  Finney,  2  C.  &  K.  774,  61  E.  C.  L.,  Alder- 
son,  B.,  held,  that  the  fact  of  the  former  sentence  being  in  force  at  the 
time  the  prisoner  was  found  at  large,  was  sufficiently  proved  by  the 
certificate  of  his  conviction  and  sentence,  the  judgment  not  having 
been  reversed,  although  on  the  face  of  such  certificate  it  appeared  that 
the  sentence,  viz.,  transportation  for  fourteen  years,  was  one  which 
could  not  have  been  inflicted  on  him,  for  the  offence  of  Avhich,  accord- 
ing to  the  certificate,  he  had  been  convicted,  viz.,  larceny. 


1210  TRANSPORTATION — RETURNING  FROM. 

Punishment.  By  the  4  &  5  Will.  4,  c.  67,  reciting  the  22ncl  sec- 
tion of  tho  5  Geo.  4,  c.  84,  it  is  enacted,  "that  every  person  convicted 
of  any  ortence  above  specified  in  the  said  Act  of  the  5th  year  of  the 
reign  of  his  late  majesty  King  George  4,  or  of  aiding  or  abetting,  coun- 
selling, or  pi'ocuring  the  commission  thereof,  shall  be  liable  to  be 
*QS91  *traiisported  beyond  the  seas  for  his  or  her  natural  life,  and 
"'-'  ])rcviously  to  transportation  shall  be  imprisoned,  with  or  with- 
out hard  labor,  in  any  common  gaol  or  house  of  correction,  prison,  or 
penitentiary,  for  any  term  not  exceeding  four  years." 

Reward  to  prosecutor.  The  judge  before  whom  a  prisoner  is  tried 
for  returning  from  transportation  has  power  to  order  the  county  treas- 
urer to  pay  tho  ])rosecutor  the  reward  under  the  act.  E,.  v.  Emmons. 
2  Moo.  &R.  279. 


TREES   AXD    OTHER    VEGETABLE    PRODUCTIONS.  1211 


*TREES  AND  OTHER  VEGETABLE  PRODUCTIONS.  r*983 

PAGE 

Stealing  or  destroying  trees,  shrul).s,  etc.,  in  a  pleasure  ground  of  the 

value  of  1/.,  or  elsewhere  of  the  value  of  5/ 983 

Stealing  or  destroying  with  intent  to  steal  trees,  shrubs,  etc,,  wher- 
ever growing,  t<j  the  value  of  li. 983 

Stealing  or  tlestroying  any  jilant,  root,  or  vegetable  production         .  984 

Setting  fire  to  trees  and  other  vegetable  produce 984 

Setting  tire  to  stacks  of  corn,  wood,  etc 984 

Injuring  hopbinds 984 

Injuiing  trees,  shrubs,  etc.,  in  a  pleasure  ground  to  the  value  of  1^. 

and  upwards 984 

Injuring  trees,  shrubs,  etc.,  wheresoever  growing,  to  the  value  of  l*.  985 

Injuriug  vegetable  productions  in  a  garden 985 

Stealing  or  destroying  with  intent  to  steal  trees,  shrubs,  etc., 
in  a  pleasure  ground  of  the  value  of  1/.,  or  elsewhere  of  the 
value  of  5^.  By  the  24  t&  25  Vict.  c.  96,  s.  32,  "  wliosoevor  shall 
steal,  or  shall  cut,  break,  root  up,  or  otherwise  destroy  or  clainage  with 
intent  to  steal,  the  whole  or  any  part  of  any  tree,  sapling,  or  shrub,  or 
any  underwood,  respectively  growing  in  any  park,  pleasure  ground, 
garden,  orchard,  or  avenue,  or  in  any  ground  adjoining  or  belonging 
to  any  dwelling-house,  shall  (in  case  the  value  of  the  article  or  articles 
stolen,  or  the  amount  of  the  injury  done,  shall  exceed  the  sum  of  one 
pound),  be  guilty  of  felony,  and  being  convicted  thereof  shall  be  liable 
to  be  punished  as  in  the  case  of  simple  larceny  ;  and  whosoever  shall 
steal,  or  shall  cut,  break,  root  up,  or  otlierwise  destroy  or  damage  with 
intent  to  steal,  the  whole  or  any  part  of  any  tree,  sapling,  or  shrub,  or 
any  underwood,  respectively  gro^ving  elsewliere  than  in  any  of  the 
situations  in  this  section  before  mentioned,  shall  (in  case  the  value  of 
the  article  or  articles  stolen,  or  the  amount  of  the  injury  done,  shall 
exceed  the  sum  of  five  pounds)  be  guilty  of  felony,  and  being  con- 
victed thereof  shall  be  liable  to  be  punished  as  in  the  case  of  simple 
larceny."  As  to  the  meaning  of  the  words  "  adjoining  "  or  "belong- 
ing to,"  see  R.  v.  Hodges,  ante,  p.  530. 

Stealing  or  destroying  with  intent  to  steal  trees,  shrubs,  etc., 
wherever  growing,  to  the  value  of  Is.  By  s.  33,  "  whosoever  shall 
steal,  or  siiall  cut,  In'cak,  root  up,  or  otherwise  destroy  or  damage  with 
intent  to  steal,  the  wliole  or  any  jmrt  of  any  tree,  sapling,  or  shrub, 
or  any  underwood,  wheresoever  the  same  may  be  respectively  growing, 
the  stealing  of  such  article  or  articles,  or  the  injury  done,  being  to  the 
amount  of  a  shilling  at  the  least,  shall,  on  conviction  thereof  before  a 
justice  of  the  peace,  forfeit  and  pay,  over  and  above  the  value  of  the 
article  or  articles  stolen,  or  the  amount  of  the  injury  done,  such  sum 
of  money  not  exceeding  five  pounds  as  to  the  justice  shall  seem  meet; 
*and  whosoever  having  been  convicted  of  any  such  offence,  t^qq  i 
either  against  this  or  any  former  Actof  ])nrliament,  shall  after-  L 
wards  commit  any  of  the  said  offences  in  this  section  belbre  mentioned, 


1212      TREES  AND  OTHER  VEGETABLE  PRODUCTIONS. 

and  shall  be  convicted  thereof  in  like  manner,  shall  for  sneli  second 
otlence  be  committed  to  the  common  gaol  or  house  of  correction,  there 
to  be  kept  to  hard  labor  for  such  term  not  exceeding  twelve  months  as 
the  convicting  justice  shall  think  fit;  and  whosoever,  having  been 
twice  convicted  of  any  such  offence  (whether  both  or  either  of  such 
convictions  shall  have  taken  place  before  or  after  the  passing  of  this 
Act),  shall  afterwards  commit  any  of  the  offences  in  this  section  before 
mentioned,  shall  be  guilty  of  felony,  and  being  convicted  thereof 
shall  be  liable  to  be  punished  in  the  same  manner  as  iu  the  case  of 
simple  larceny." 

Stealing  or  destroying  any  plant,  root,  or  vegetable  pro- 
duction. By  s.  36,  "whosoever  shall  steal  or  shall  destroy  or  damage 
with  intent  to  steal,  any  plant,  root,  fruit,  or  vegetable  production 
growing  in  any  garden,  orchard,  pleasure  ground,  nursery  ground, 
hothouse,  greenhouse,  or  conservatory,  shall,  on  conviction  thereof  be- 
fore a  justice  of  the  peace,  at  the  discretion  of  the  justice,  either  be 
committed  to  the  common  gaol  or  house  of  correction,  there  to  be  im- 
prisoned only,  or  to  be  imprisoned  and  kept  to  hard  labor  for  any 
term  not  exceeding  six  months,  or  else  shall  forfeit  and  pay,  over 
and  above  the  value  of  the  article  or  articles  so  stolen,  or  the 
amount  of  the  injury  done,  such  sum  of  money  not  exceeding  201.  as 
to  the  justice  shall  seem  meet ;  and  whosoever  having  been  convicted 
of  any  such  offence,  either  against  this  or  any  former  Act  of  parlia- 
ment, shall  afterwards  commit  any  of  the  offences  in  this  section  be- 
fore mentioned,  shall  be  guilty  of  felony,  and  being  convicted  thereof 
shall  be  liable  to  be  punished  in  the  same  manner  as  in  the  case  of 
simple  larceny." 

Setting  fire  to  trees  and  other  vegetable  produce.  See  24  & 
25  Vict.  c.  97,  s.  16,  siqa-a,  p.  286. 

Setting  fire  to  stacks  of  corn,  wood,  etc.  See  24  &  25  Vict. 
c.  97,  s.  17,  supra,  p.  2<S7. 

Injuring  hopbinds.  By  the  24  &  25  Vict.  c.  97,  s.  19,  "whoso- 
ever shall  unlawfully  and  maliciously  cut  or  otherwise  destroy  any 
hopbinds  grov/ing  on  poles  in  any  plantation  of  hops  shall  l)e  guilty 
of  felony,  and  being  convicted  thereof  shall  be  liable,  at  the  discretion 
of  the  court,  to  be  kept  in  penal  servitude  for  any  term  not  exceeding 
fourteen  and  not  less  than  three  [now  five]  years,  or  to  be  imprisoned 
for  any  term  not  exceeding  two  years,  with  or  without  hard  labor,  and 
with  or  without  solitary  confinement,  and,  if  a  male  under  the  age  of 
sixteen  years,  with  or  Avithout  whipping." 

Injuring  trees  in  a  pleasure  ground  to  the  value  of  1/.  and 
upwards.  By  s.  20,  "whosoever  shall  unlawfully  and  maliciously 
cut,  break,  bark,  root  up,  or  otherwise  destroy  or  damage  the  whole  or 
any  part  of  any  tree,  sapling,  or  shrub,  or  any  underwood,  growing  in 


TEEES   AND   OTHER   VEGETABLE   PRODUCTIOXS.  1213 

any  park,  pleasure  ground,  garden,  orchard,  or  avenue,  or  in  any  ground 
adjoining  or  belonging  to  any  dwelling-house  (in  ease  the  amount  of  the 
injury  done  shall  exceed  the  sum  of  one  ])ound),  shall  he  guilty  of 
*felony,  and  being  convicted  thereof  shall  be  liable,  at  the  dis-  r.-(:qor 
cretion  of  the  court,  to  be  kept  in  penal  servitude  for  the  term  L  '  '  ' 
of  three  [now  five]  years,  or  to  be  imprisoned  for  any  term  not  ex- 
ceeding two  years,  with  or  without  hard  labor,  and  with  or  without 
solitary  confinement,  and,  if  a  male  under  the  age  of  sixteen  years, 
with  or  without  whij)ping." 

By  s.  21,  "  whosoever  shall  unlawfully  and  maliciously  cut,  break, 
bark,  root  up,  or  otherwise  destroy  or  damage  the  whole  or  any  part 
of  any  tree,  sapling,  or  shrub,  or  any  underwood  growing  elsewhere 
than  in  any  park,  pleasure  ground,  garden,  orchard,  or  avenue,  or  in 
any  ground  adjoining  to  or  belonging  to  any  dwelling-house  (in  case 
the  amount  of  injury  done  shall  exceed  the  sum  of  five  pounds),  shall 
be  guilty  of  felony,  and  being  convicted  thereof  shall  be  liable,  at  the 
discretion  of  the  court,  to  be  kept  in  penal  servitude  for  the  term  of 
three  years,  or  to  be  imprisoned  for  any  term  not  exceeding  two  years, 
with  or  without  hard  labor,  and  with  or»without  solitary  confinement, 
and,  if  a  male  under  the  age  of  sixteen  years,  with  or  without  whip- 
ping." 

Injuring  trees,  etc.,  wheresoever  growing,  to  the  amount  of  Is. 
By  s.  22,  "  whosoever  shall  unlawfully  and  maliciously  cut,  break,  bark, 
root  up,  or  otherwise  destroy  or  damage  the  whole  or  any  part  of  any 
tree,  sapling,  or  shrub,  or  any  underwood,  wheresoever  the  same  may 
be  growing,  the  injury  done  being  to  the  amount  of  one  shilling  at 
the  least,"  is  for  the  first  and  second  offence  made  liable  to  conviction 
before  a  justice  of  the  peace ;  "and  whosoever  liaving  been  twice  con- 
victed of  any  such  offence  (whether  both  or  either  of  such  con- 
victions shall  have  taken  place  before  or  after  the  passing  of  this  Act) 
shall  afterwards  commit  any  of  the  said  offences  in  this  section  before 
mentioned  shall  be  guilty  of  a  misdemeanor,  and  being  convicted 
thereof  shall  be  liable,  at  the  discretion  of  the  court,  to  be  imprisoned 
for  any  terra  not  exceeding  two  years,  with  or  without  hard  labor, 
and  with  or  without  solitary  confinement,  and,  if  a  male  under  the  age 
of  sixteen,  with  or  without  whipping." 

Injuring  vegetable  productions  in  gardens.  By  s.  23,  "whoso- 
ever shall  unlawfully  and  maliciously  destroy,  or  damage  with  intent 
to  destroy,  any  plant,  root,  fi'uit,  or  vegetable  production,  growing  in 
any  garden,  orchard,  nursery  ground,  hothouse,  greenhouse,  or  con- 
servatory, shall,  on  conviction  thereof  before  a  justice  of  the  peace, 
at  the  discretion  of  the  justice,  either  be  committed  to  the  common 
gaol  or  house  of  correction,  there  to  be  imprisoned  only,  or  to  be 
imprisoned  and  kept  to  hard  labor,  for  any  term  not  exceeding  six 
months,  or  else  shall  forfeit  and  pay,  over  and  above  the  amount  of 
the  injury  done,  such  sum  of  money  not  exceeding  twenty  pounds  as 
to  the  justice  shall  seem  meet ;  and  whosoever,  having  been  convicted 


1214      TREES  AXD  OTHER  VEGETABLE  PRODUCTIONS. 

of  such  offence,  either  against  this  or  any  former  Act  of  parliament, 
shall  afterwards  commit  any  of  the  said  offences  in  this  section  before 
mentioned,  shall  be  guilty  of  felony,  and  being  convicted  thereof  shall 
be  liable,  at  tlie  discretion  of  the  court,  to  be  kept  in  penal  servitude 
for  the  term  of  three  [now  live]  years,  or  to  be  imprisoned  for  any 
term  not  exceeding  two  years,  with  or  without  hard  labor,  and  with 
or  without  solitary  coniinement,  and,  if  a  male  under  the  age  of  sixteen 
years,  with  or  without  wliipping." 

Upon  the  repealed  statute  9  Geo.  1,  c.  22,  s.  1,  the  words  of  which 

*Q8r1    *^^^^*®  *'  shall  cut  down  or  otherwise  destroy,"  it  was  held  that 

J    the  cutting  down  of  fruit  trees,  though  such  cutting  down  did 

not  destroy  the  trees,  was  within  the  Act.     R.  v.  Taylor,  lluss.  &  Ry. 

373. 

The  actual  injury  to  the  trees  themselves  must  exceed  the  value 
mentioned  in  the  section.  Where,  therefore,  the  prisoner  was  in- 
dicted for  having  done  damage  to  trees  in  a  hedge  amounting  to  51., 
and  it  appeared  that  the  injury  to  the  trees  amounted  to  1/.  only,  but 
that  it  Avould  be  necessary  to  stub  up  the  old  hedge,  and  replace 
it,  the  expense  of  which  Avoiild  be  41.  14s.  more,  the  conviction  was 
held  to  be  wrong.  R.  v.  Whiteman,  Dears.  C.  C.  353;  23  L.  J., 
M.  C.  120. 

It  is  sufficient  to  prove  that  the  aggregate  value  of  the  trees  cut  at 
one  time  exceeds  the  value  laid  in  the  indictment.  E,.  v.  Shepherd, 
L.  R.  1,  C.  C.  R.  118  ;  37  L.  J.,  M.  C.  45. 


TKUSTEES. — TUHNPIKE  GATES.  1215 


*TRUSTEES— FEAUDS  BY.  [*987 

Definition  of  term  trustee.  By  the  24  &  25  Vict.  c.  96,  s.  1,  "  the 
term  '  trustee  '  shall  mean  a  trustee  on  some  expressed  trust,  created  by 
some  deed,  will,  or  instrument  in  writing:;,  and  shall  include  the  heir, 
or  personal  representative  of  any  such  trustee,  and  any  other  person 
upon  or  to  whom  the  duty  of  such  trust  shall  have  devolved  or  come, 
and  also  an  executor  and  administrator,  and  an  official  manager, 
assignee,  liquidator,  or  other  like  officer  acting  under  any  present 
or  future  Act  relating  to  joint  stock  companies,  bankruptcy,  or  insol- 
vency." 

Trustees  fraudulently  disposing  of  property.  By  s.  80,  "  who- 
soever, being  a  trustee  of  any  ])roperty  for  the  use  or  benefit,  either 
wholly  or  partially,  of  some  other  person,  or  for  any  public  or  chari- 
table purpose,  shall,  with  intent  to  defraud,  convert  or  appropriate  the 
same  or  any  part  thereof  to  or  for  his  own  use  or  benefit,  or  the  use 
or  benefit  of  any  person  other  than  such  person  as  aforesaid,  or  for 
any  purpose  other  than  such  public  or  charitable  purpose  as  aforesaid, 
or  otherwise  dispose  of  or  destroy  such  property,  or  any  part  thereof, 
shall  be  guilty  of  a  misdemeanor,  and  being  convicted  thereof  shall 
be  liable,  at  the  discretion  of  the  court,  to  any  of  the  punishments 
which  the  court  may  award  as  hereinbefore  last  mentioned."  A  pro- 
viso follows,  that  no  prosecution  shall  be  commenced  without  the 
sanction  of  some  judge  or  the  Attorney-General.  The  punishment 
is,  penal  servitude  not  exceeding  seven  years  and  not  less  than  three 
[now. five]  years,  or  imprisonment  not  exceeding  two  years,  with  or 
without  hard  labor,  and  with  or  without  solitary  confinement.  See  s. 
75,  supr-a,  p.  278. 

As  to  the  meaning  of  the  word  "  property,"  see  24  &  25  Vict.  c.  96, 
s.  1,  supra,  p.  640. 

As  to  what  persons  are  within  the  section,  see  R.  v.  Fletcher,  31  L. 
J.,  M.  C.  206. 


TURNPIKE  GATES— INJURIES  TO. 


Destroying  turnpike  gates,  toll  houses,  etc.     By  the  24  &  25  Vict. 

c.  97,  s.  34,  "whosoever  shall  unlawfully  and  maliciously  throw 
down,  level,  or  otherwise  destroy,  in  whole  or  in  part,  any  turnpike 
gate  or  toll  bar,  or  any  wall,  chain,  rail,  post,  bar,  or  other  fence 
belonging  to  any  turnpike  gate  or  toll  bar,  or  set  up  or  erected  to 
prevent  passengers  passing  by  without  jmying  any  toll  directed  to  be 
paid  by  any  Act  of  parliament  relating  thereto,  or  any  house,  build- 
ing or  ^veighing  engine  erected  for  the  better  collection,  ascertain- 
ment, or  security  of  any  such  toll,  shall  be  guilty  of  a  misdemeanor. 


1216  WOEKS   OF   AKT. 


*988]  nVORKS  OF  AET. 

Injuring  -works  of  art.  By  the  24  &  25  Vict.  c.  97,  s,  39,  "  who- 
soever shall  unlawfully  and  maliciously  destroy  or  damage  any  book, 
manuscript,  picture,  print,  statue,  bust,  or  vase,  or  any  otiier  article 
or  thing  kept  for  the  purposes  of  art,  science,  or  literature,  or  as  an 
object  of  curiosity,  in  any  museum,  gallery,  cabinet,  library,  or  other 
repository,  which  museum,  gallery,  cabinet,  library,  or  other  reposi- 
tory is  either  at  all  times  or  from  time  to  time  open  for  the  admission 
of  the  public  or  of  any  considerable  number  of  persons  to  view  the 
same,  either  by  the  permission  of  the  proprietor  thereof,  or  by  the 
payment  of  money  before  entering  the  same,  or  any  picture,  statue, 
monument,  or  other  memorial  of  the  dead,  painted  glass,  or  other 
monument  or  work  of  art,  in  any  church,  chapel,  meeting-house,  or 
other  place  of  divine  worship,  or  in  any  building  belonging  to  the 
Queen,  or  to  any  county,  riding,  division,  city,  borough,  poor-law 
union,  parish  or  place,  or  to  any  university,  or  college,  or  hall  of  any 
university,  or  to  any  inn  of  court,  or  in  any  street,  square,  church- 
yard, burial-ground,  public  garden  or  ground,  or  any  statue  or 
monument  exposed  to  public  view,  or  any  ornament,  railing,  or  fence 
surrounding  such  statue  or  monument,  shall  be  guilty  of  a  misde- 
meanor, and  being  convicted  thereof  shall  be  liable  to  be  imprisoned 
for  any  term  not  exceeding  six  months,  with  or  without  hard  labor, 
and,  if  a  male  under  the  age  of  sixteen  years,  with  or  without 
whipping." 


WOUNDING.  1217 


*WOUNDING.  [*989 

Wounding  with  intent  to  murder.  See  24  &  25  Vict.  c.  100,  s. 
11,  sup7'a,  tit.  "  Murder,  attempts  to  commit." 

Wounding  with  intent  to  do  grievous  bodily  harm.  See  24  &  25 
Vict.  c.  190,  s.  18,  supra,  p.  609. 

Unlawfully  wounding.  By  the  24  &  25  Vict.  c.  100,  s.  20,  "  who- 
soevei'  shall  unlawfully  and  maliciously  Avound,  or  inflict  any  griev- 
ous bodily  harm  upon  any  other  person,  either  with  or  without  any 
weapon  or  instrument,  shall  be  guilty  of  a  misdemeanor,  and  being 
convicted  thereof  shall  be  liable,  at  the  discretion  of  the  court,  to  be 
kept  in  penal  servitude  for  the  term  of  three  [now  five]  years,  or  to 
be  imprisoned  for  any  term  not  exceeding  two  years,  with  or  without 
hard  labor." 

Power  to  convict  of  unlawfully  wounding  on  indictment  for  fel- 
ony. By  the  14  &  15  Vict.  c.  19,  s.  5,  "  if  upon  the  trial  of  any  in- 
dictment for  any  felony,  except  murder  or  manslaughter,  where  the  in- 
dictment shall  allege  that  the  defendant  did  cut,  stab,  or  M'ound  any 
person,  the  jury  shall  be  satisfied  that  the  defendant  is  guilty  of  the 
cutting,  stabbing,  or  wounding,  charged  in  such  indictment,  but  are  not 
satisfied  that  the  defendant  is  guilty  of  the  felony  charged  in  such  in- 
dictment, then,  and  in  every  such  case,  the  jury  may  acquit  the  de- 
fendant of  such  felony,  and  find  him  guilty  of  unlawfully  cutting, 
stabbing,  or  wounding,  and  thereupon  such  defendant  shall  be  liable 
to  be  punished  in  the  same  manner  as  if  he  had  been  convicted 
upon  an  indictment  for  the  misdemeanor  of  cutting,  stabbing,  or 
wounding." 

Wounding  cattle.     See  24  &  25  Vict.  c.  97,  s.  40,  supra,  p.  389. 

■  Proof  of  wounding.  Where  the  prisoner  is  indicted  for  woiinding,  it 
must  appear  that  the  skin  Avas  broken ;  a  mere  contusion  is  not  suflicient. 
Where  the  prisoner  had  struck  the  prosecutor  with  a  bludgeon,  and  the 
skin  was  broken,  and  the  blood  flowed  ;  Patteson,  J.,  said,  that  it  was 
not  material  what  the  instrument  used  was,  and  held  the  case  to  be 
within  tlie  statute.  II.  v.  Payne,  4  C.  &  P.  558, 19  E.  C.  L.  In  a  case 
which  occurred  before  Littledale,  J.,  on  the  Oxford  circuit,  he  directed 
the  prisoner  to  be  acquitted,  it  not  appearing  that  the  skin  was  broken 
or  incised.  Anon,  cifed  1  Moo.  C.  C.  280.  See  Moriarty  v.  Brooks, 
6  C.  &  P.  684,  25  E.  C.  L.  But  in  a  case  which  came  soon  afterwards 
before  Parke,  J.,  Avhere  there  was  no  proof  of  an  incised  wound,  the 
77 


1218  WOUNDING. 

learned  judge  told  the  jury  that  he  was  clearly  of  opinion  that  it  need 
not  be  an  incised  wound,  for  that  he  believed  the  Act  of  Parliament 
-,  *(9  Geo.  4)  liad  introduced  the  word  ivound  for  the  purpose  of 
J  destroying  the  distinction,  wliich,  as  the  words  in  the  old  statute 
were  only  stab  or  cut,  it  ^vas  always  necessary  to  make,  between  the 
contused  and  incised  wounds,  and  that  it  was  not  necessary,  either  that 
the  skin  should  be  broken  or  incised,  or  that  a  cutting  instrument 
should  be  used,  for  that  otherwise  the  thing  intended  to  be  remedied 
by  the  new  Act  should  remain  as  before.  The  prisoner  being  found 
guilty,  the  case  was  reserved  for  the  decision  of  the  judges,  amongst 
whom  there  was  considerable  discussion  and  difference  of  opinion.  Lord 
Tenterden  said  he  thought  the  word  wound  was  not  introduced  to 
cure  the  difficulty,  whether  a  cutting  or  stabbing  instrument  was 
used.  In  this  case,  from  the  continuity  of  the  skin  not  beiug  broken, 
it  was  thought  by  all,  except  Bay  ley,  B.,  and  Parke,  J.,  that  there 
was  no  wound  within  the  Act,  and  that  the  conviction  was  wrong.  R. 
V.  Wood,  1  Moo.  C.  C.  278 ;  4  C.  &  P.  381,  19  E.  C.  L.  So  a  scratch 
is  not  a  wound  within  the  statute  ;  there  must  at  least  be  a  division  of 
the  external  surfoce  of  the  body.  Per  Parke,  B.,  R.  v.  Beckett,  1  Moo. 
&  R.  52(5.  So  it  was  held  by  Bosanquet,  Coleridge,  and  Coltman,  JJ., 
that  to  constitute  a  wound  it  is  necessary  that  there  should  be  a  sepa- 
ration of  the  whole  skin,  and  a  separation  of  the  cuticle  is  not  sufficient. 
R.  V.  M'Loughlin,  8  C.  &  P.  635,  34  E.  C.  L.  But  where  a  blow 
given  with  a  hammer  broke  the  lower  jaw  in  two  places,  and  the  skin 
was  broken  internally,  but  not  externally,  and  there  was  not  much 
blood  ;  Lord  Denman,  C.  J.,  and  Parke,  J.,  held  this  a  wounding 
within  the  Act.  R.  v.  Smith,  8  C.  &  P.  173,  34  E.  C.  L.  Where 
the  prisoner  was  indicted  under  the  9  Geo.  4,  for  cutting  and  wounding 
the  prosecutor  with  intent,  etc.,  and  it  appeared  that  he  threw  a  ham- 
mer at  him,  which  struck  him  on  the  face,  and  broke  the  skin  for  an 
inch  and  a  half,  the  prisoner  being  convicted,  a  case  was  reserved  for 
the  opinion  of  the  judges,  whether  the  injury  could  be  considered  either 
as  a  stab,  cut,  or  wound,  within  the  true  construction  of  the  statute, 
and  it  was  unanimously  resolved  by  those  who  \vere  present,  that  the 
case  amounted  to  a  ivound  within  the  statute,  and  that  the  conviction 
was  right.  R.  v.  Withers,  1  Moo.  C.  C.  294  ;  4  C.  &  P.  446,  19  E. 
C.  L.  Where  the  prisoner  struck  the  prosecutor  on  the  outside  of  his 
hat  with  an  air-gun,  and  the  hard  rim  of  the  hat  wounded  the  pros- 
ecutor, but  the  gun  did  not  come  directly  in  contact  with  his  head  ;  the 
judges  held  this  to  be  a  wounding  within  the  statute.  R.  v.  Sheard, 
7  C.  &  P.  846,  32  E.  C.  L.;  2  Moo.  C.  C.  13. 

Throwing  vitriol  in  the  face  of  the  prosecutor  was  held  not  to  be  a 
wounding  within  the  repealed  statute  9  Geo.  4,  c.  31,  s.  12.  R.  v. 
Murrow,  1  Moo.  C.  C.  456. 

In  R.  V.  Gray,  Dears.  &  B.  C.  C.  303 ;  26  L.  J.,  M.  C.  203,  the 
court  of  criminal  appeal  thought  that  the  exposure  of  a  child  in 
an  open  field,  thereby  causing  congestion  of  the  lungs  and  heart, 
there  being  no  lesion  of  any  part  of  the  child's  body,  was  not  a 
wounding. 


WOUNDING.  1219 

"Where  the  intent  is  not  proved,  the  defendant  may  be  found  guilty 
of  unlawfully  wounding  under  14  &  15  Vict.  c.  19,  s.  5,  supra,  and 
where  the  indictment  is  for  unlawfully  wounding,  he  may  be  found 
guilty  of  a  common  assault,  ante,  p,  309.  Where,  however,  the  in- 
dictment merely  charged  a  "  felonious  shooting,"  it  was  held  by 
Bo  wen,  J.,  that  it  was  not  comj^etent  to  the  jury  to  convict  of  unlaw- 
fully wounding,  it  not  being  alleged  in  the  indictment  that  the  pris- 
oner did  "  cut,  stab,  or  wound."     11.  v.  Miller,  14  Cox,  C.  C.  356.^ 

Proof  of  malice.  Although  the  14  &  15  Vict.  c.  19,  s.  5,  r*QQ-i 
cited  supra,  states  in  effect  that  if  the  jury  think  the  prisoner  •- 
had  no  felonious  intent,  they  may  find  him  guilty  of  "  unlawful 
wounding "  merely,  yet  it  has  been  decided  that  such  unlawful 
wounding  must  be  a  malicious  wounding  within  the  terms  of  24 
&  25  Vict.  c.  100,  s.  20,  suj^ra.  R.  v.  Ward,  L.  R.  1  C.  C.  R.  356 ; 
41  L.  J.,  M.  C.  69.  As  to  what  is  necessary  to  constitute  malice,  see 
ante,  pp.  22,  23. 

As  to  the  form  of  indictment,  see  supra,  tit.,  "  Murder,  attempts 
to  commit." 

1  Ward  V.  State,  56  Ga.  408. 


1220  WKITTEN  II>STRUMENTS. 


=  992] 


♦WRITTEN  INSTRUMENTS. 


Larceny  or  destruction  of  valuable  securities  and  documents  of  title  9i)2 

Form  of  indictment  ,         .         • ,         ,  992 

Stealinj,',  injuring,  or  concealing  wills        , 992 

Eti'ect  of  disclosure 993 

Stealing  records  or  other  legal  documents  •        .        .        ,        .  993 

"What  instruments  are  within  the  statute        ......  993 

Taking  with  a  fraudulent  purpose       ...,,,,  996 

Larceny  or  destruction  of  valuable  securities  and  documents 

of  title.  By  the  24  &  25  Vict.  c.  96,  s.  27,  "  whosoever  sliall  steal, 
or  shall  for  any  fraudulent  purpose  destroy,  cancel,  or  obliterate  the 
whole  or  any  part  of  any  valuable  security,  other  than  a  document  of 
title  to  lands,  shall  be  guilty  of  felony,  of  the  same  nature  and  in  the 
same  degree  and  punishable  in  the  same  manner  as  if  he  had  stolen 
any  chattel  of  like  value  with  the  share,  interest,  or  deposit  to  which 
the  security  so  stolen  may  relate,  or  with  the  money  due  on  the  security 
so  stolen,  or  secured  thereby  and  remaining  unsatisfied,  or  with  the 
value  of  the  goods  or  other  valuable  thing  represented,  mentioned,  or 
referred  to  in  or  by  the  security." 

By  s.  28,  "  whosoever  shall  steal,  or  shall  for  any  fraudulent  pur- 
pose destroy,  cancel,  obliterate,  or  conceal  the  whole  or  any  part  of 
any  document  of  title  to  lands,  shall  be  guilty  of  felony,  and  being 
convicted  thereof  shall  be  liable,  at  the  discretion  of  the  court,  to  be 
kept  in  penal  servitude  for  the  term  of  three  [now  five]  years,  or  to 
be  imprisoned  for  any  term  not  exceeding  two  years,  with  or  without 
hard  labor,  and  with  or  without  solitary  confinement." 

See  also  as  to  the  fraudulent  concealment  of  documents  of  title, 
supra,  p.  422,  and  the  suppression  of  documents  or  facts  with  intent 
to  conceal  the  title  of  any  person,  or  to  substantiate  a  false  claim  imder 
the  Land  Title  and  Transfer  of  Land  in  England  Act  (38  &  39  Vict, 
c.  87). 

Form  of  indictment.  By  the  same  section,  "  in  any  indictment 
for  any  such  offence  relating  to  any  document  of  title  to  lands,  it  shall 
be  sufficient  to  allege  such  document  to  be  or  to  contain  evidence  of  the 
title  or  of  part  of  the  title  of  the  person  or  of  some  one  of  the  persons 
having  an  interest,  whether  vested  or  contingent,  legal  or  equitable,  in 
the  real  estate  to  which  the  same  relates,  and  to  mention  such  real 
estate  or  some  part  thereof." 

Stealing,  injuring,  or  concealing  wills.  By  s.  '29,  "  whosoever 
shall,  either  during  the  life  of  the  testator  or  after  his  death,  steal, 
or  for  any  fraudulent  purpos"  destroy,  cancel,  obliterate,  or  conceal 
the  whole  or   any  part  of  any  will,  codicil,  or  other  testamentary 


WRITTEN   INSTRUMENTS.  1221 

*instrument,  whether  the  same  shall  relate  to  real  or  personal  r^jcngo 
estate,  or  to  both,  shall  be  guilty  of  felony,  and  being  convieted  L 
thereof,  shall  be  liable,  at  the  diseretion  of  the  court,  to  be  kept  in 
penal  servitude  for  life  or  for  any  term  not  less  than  three  [now 
iivc]  years,  or  to  be  imprisoned  for  any  term  not  exceeding  two  years, 
with  or  without  hard  labor,  and  with  or  without  solitary  confinement ; 
and  it  shall  not  in  any  indictment  for  such  oiFence  be  necessary  to 
allege  that  such  will,  codicil,  or  other  instrument,  is  the  property  of 
any  person." 

Effect  of  disclosure.  By  the  same  section,  "  no  person  shall  be 
liable  to  be  convicted  of  any  of  the  felonies  in  this  and  the  last  pre- 
ceding section  mentioned  by  any  evidence  whatever  in  respect  of  any 
act  done  by  him,  if  he  shall  at  any  time  previously  to  his  being 
charged  with  such  offence  have  first  disclosed  such  act  on  oath 
in  consequence  of  any  compulsory  process  of  any  court  of  law  or 
equity  in  any  action,  suit,  or  proceeding  which  shall  have  been 
bond  fide  instituted  by  any  party  aggrieved,  or  if  he  shall  have 
first  disclosed  the  same  in  any  compulsory  examination  or  deposi- 
tion before  any  court  upon  the  hearing  of  any  matter  in  bankruptcy 
or  insolvency." 

Stealing  records  or  other  legal  documents.  By  s.  30,  "  whoso- 
ever shall  steal,  or  shall  for  any  fraudulent  purpose  take  from  its  place 
of  deposit  for  the  time  being,  or  from  any  person  having  the  lawful 
custody  thereof,  or  shall  unlawfully  and  maliciously  cancel,  obliterate, 
injure,  or  destroy  the  whole  or  any  part  of  any  record,  writ,  return, 
panel,  process,  interrogatory,  deposition,  affidavit,  rule,  order,  or 
w^arrant  of  attorney,  or  of  any  original  document  whatsoever  of  or 
belonging  to  any  court  of  record,  or  relating  to  any  matter,  civil  or 
criminal,  begun,  depending,  or  terminated  in  any  such  court,  or  of 
any  bill,  petition,  answer,  interrogatory,  deposition,  affidavit,  order, 
or  decree,  or  of  any  original  document  whatsoever  of  or  belonging  to 
any  court  of  equi1:y,  or  relating  to  any  cause  or  matter  begun,  de- 
pending, or  terminated  in  any  such  court,  or  of  any  original  docu- 
ment in  anywise  relating  to  the  business  of  any  office  or  employment 
under  her  Majesty,  and  being  or  remaining  in  any  office  appertaining 
to  any  court  of  justice,  or  in  any  of  her  Majesty's  castles,  palaces,  or 
houses,  or  in  any  government  or  public  office,  shall  be  guilty  of  felony, 
and  being  convicted  thereof  shall  be  liable,  at  tlie  discretion  of  the 
court,  to  be  kept  in  penal  servitude  for  the  term  of  three  [now  five] 
years,  or  to  be  imprisoned  for  any  term  not  exceeding  two  years,  with 
or  without  hard  labor,  and  with  or  without  solitary  confinement ;  and 
it  shall  not  in  any  indictment  for  such  offence  be  necessary  to  allege 
that  the  article  in  respect  of  which  the  offence  is  committed  is  the 
property  of  any  person." 

What  instruments  are  within  the  statute.     At  common  law,  lar- 
ceny could  not  be  committed  of  deeds  or  other  instruments  concerning 


1222  WRITTEN   INSTRUMENTS. 

land.  1  Hale,  P.  C.  510.  Thus  it  was  held,  that  stealing  a  com- 
mission, directed  to  commissioners  to  ascertain  boundaries,  was  not 
a  felony,  the  commission  concerning  the  realty.  II.  v.  Westbeer,  1 
Leach,  12;  2  East,  P.  C.  59(3;  2  8tr.  1131.  But  the  parchment 
upon  which  the  records  of  a  court  of  justice  are  inscribed,  if  it  do  not 
relate  to  the  realty,  may  be  the  subject  of  larceny.  R.  v.  \Valker, 
*QQ4.1  *^  Moo.  C.  C.  155.  Bonds,  bills,  and  notes  which  concern 
-•  mere  choses  in  action,  were  also  at  common  law  held  not  to  be 
such  goods  whereof  felony  might  be  committed,  being  of  no  intrinsic 
value,  and  not  importing  any  property  in  possession  of  the  party  from 
whom  they  are  taken.  4  Bl.  Com.  234  ;  2  East,  P.  C.  597.'  It  was 
even  held,  that  larceny  could  not  be  committed  of  the  box  in  which 
charters  concerning  the  land  were  held.  3  Inst.  109  ;  1  Hale,  P.  C. 
510.  Mortgage  deeds  being  subsisting  securities  for  the  payment  of 
money,  are  "  choses  in  action,"  and  not  "  goods  and  chattels."  Where, 
therefore,  the  prisoner  was  indicted  for  a  burglary,  in  breaking  into  a 
house  at  night,  with  intent  to  steal  the  "  goods  and  chattels  "  therein, 
and  the  jury  found  that  he  broke  into  the  house  with  intent  to  steal 
mortgage  deeds  only,  the  conviction  was  quashed.  "  This  was  ruled," 
said  Jervis,  C  J.,  in  delivering  judgment,  "in  R.  v.  Calye,  4  Coke,  p. 
viii.  32  ;  3  Inst.  109  ;  and  Chanel  v.  Robotam,  Yelv.  68,  where  it 
was  decided  that  a  bond  could  not  be  included  under  the  words  bona 
et  Gcitalla,  though  it  was  objected  that  the  parchment  and  box  were  such, 
and  might  pass  by  that  name,  yet,  forasmuch  as  the  debt  included 
and  wrote  upon  it  is  the  principal,  the  words  of  the  grant  ought  to 
comprehend  the  name  of  the  principal."  R.  v.  Powell,  2  Den.  C.  C. 
R.  403.  A  policy  of  insurance  is  not  a  chattel,  R.  v.  Tatlock,  ante, 
p.  281. 

It  was  held  that  a  jjawnbroker's  ticket  was  a  "  warrant  for  the 
delivery  of  goods "  which  a  prisoner  may  be  convicted  of  stealing 
under  the  7  &  8  Geo.  4,  c.  29,  s.  5  (repealed).  R.  v.  Morrison,  1  Bell, 
C.  C.  158. 

AYhether  the  paid  re-issuable  notes  of  a  banker  can  be  properly 
described  as  valuable  securities,  does  not  appear  to  be  well  settled ;  the 
safe  mode  of  describing  them  is  to  treat  them  as  goods  and  chattels. 
The  prisoner  was  indicted  in  several  counts  for  stealing  a  number  of 
promissory  notes,  and  in  others  for  stealing  so  many  pieces  of  paper, 
stamped  with  a  stamp,  etc.  It  appeared  that  the  notes  consisted  of 
country  bank  notes,  which,  after  being  paid  in  London,  were  sent 
down  to  the  country  to  be  re-issued,  and  ^veve  stolen  on  the  road.  It 
was  objected  that  these  were  no  longer  promissory  notes,  the  sums  of 
money  mentioned  in  them  having  been  paid  and  satisfied,  and  that 
the  privilege  of  re-issuing  them,  possessed  by  the  bankers,  could  not 
be  considered  the  subject  of  larceny.  The  judges,  however,  held 
that  the  conviction  on  the  counts  for  stealing  the  paper  and  stamps 
was  good,  the  paper  and  stamps,  and  particularly  the  latter,  being 

*  There  is  no  legal  presumption  for  the  purposes  of  a  criminal  prosecution  that 
bank  notes,  checks,  bills  of  exchange  and  other  securities  for  money  are  worth  the 
sums  which  they  represent  or  any  sum.     People  v.  Donald,  48  Mich.  491. 


WRITTEN   INSTRUMENTS.  1223 

valuable  to  the  owners.  R.  v.  Clark,  Russ.  &  Ry.  181  ;  2  Leach, 
1036  ;  1  Moo.  C.  C.  222.  In  a  later  similar  case,  where  re-issuable 
bankers'  notes  (paid  in  London)  had  been  stolen  from  one  of  the 
partners  on  a  journey,  the  prisoner  having  been  convicted  upon  an 
indictment  charging  him  in  different  counts  with  stealing  valuable 
securities  called  promissory  notes,  and  also  with  stealing  so  many 
pieces  of  paper  stamped  with  a  stamp,  etc.,  the  judges  held  the  con- 
viction right.  Some  of  them  doubted  whether  the  notes  could  prop- 
erly be  called  "  valuable  securities  ;"  but  if  not,  they  all  thought  they 
were  goods  and  chattels.  R.  v.  Vyse,  1  Moo.  C.  C.  218.  "In  R.  v. 
Vyse,"  said  Jervis,  C.  J.,  in  passing  judgment  in  R.  v.  Powell,  2  Den. 
C.  C.  R.  403,  "  the  notes  had  been  paid,  and  though  re-issuable,  were 
not  at  the  time  of  the  larceny  securities  for  the  payment  of  money. 
The  paper  and  stamp  on  which  they  were  written  were,  therefore, 
properly  described  as  goods  and  chattels." 

*Lord  Ellenborough  is  said  to  have  ruled  that  it  was  not  a  r^qoK 
felony  under  2  Geo.  2,  c.  25,  to  steal  bankers'  notes  which  were  L 
completely  executed,  but  which  had  never  been  in  circulation,  because 
no  money  was  due  upon  them ;  Anon.  4  Bl.  Com.  by  Christian,  234 
(n)  ;  but  upon  this  decision  it  has  been  observed,  that  such  notes 
would  probably  be  deemed  valuable  property  and  the  subject  of  lar- 
ceny, at  common  law.  2  Russ.  Cri.  230  (v),  5th  ed.  See  R.  v.  Clark 
and  R.  ?;.  Vyse,  supra. 

If  the  halves  of  promissory  notes  are  stolen,  they  should  be 
described  as  goods  and  chattels.  R.  v.  Mead,  4  C.  &  P.  535,  19 
E.  C.  L. 

An  incomplete  bill  of  exchange  or  promissory  note  is  not  as  such  a 
valuable  security  so  as  to  be  the  subject  of  larceny.  In  consequence 
of  seeing  an  advertisement,  A.  applied  to  the  prisoner  to  raise  money 
for  him.  The  latter  promised  to  procure  5,000/.,  and  producing  ten 
blank  10s,  stamps,  induced  A.  to  write  an  acceptance  across  them. 
The  prisoner  then  took  them,  without  saying  anything,  and  after- 
wards filled  them  upas  bills  of  exchange  for  500/.  each,  and  put  them 
into  circulation.  It  was  held  (at  the  Old  Bailey),  that  these  were 
neither  "  bills  of  exchange,"  "  orders  for  the  payment  of  money,"  nor 
"  securities  for  money ;"  and  that  a  charge  of  larceny  for  stealing  the 
paper  and  stamps  could  not  be  sustained,  the  stamps  and  paj)er  not 
being  the  property  of  A.,  or  in  his  possession.  R.  v.  Minter  Hart, 
6  C.  &  P.  106,  25  E.  C.  L.;  see  also  R.  v.  Phipoe,  2  Leach,  673 ;  2 
East,  P.  C.  599,  aide,  p.  933.  Where  the  defendants  were  indicted 
for  having  by  threats  induced  the  prosecutor  to  sign  the  following 
document,  "  I  hereby  agree  to  pay  you  100/.  to  prevent  any  action 
against  me,"  it  was  held  that,  although  not  negotiable,  yet  that  it  was 
a  valuable  security,  because,  if  the  transaction  had  been  genuine,  it 
would  have  been  a  valid  agreement  upon  which  the  prosecutor  might 
have  been  sued.     R.  v.  John,  13  Cox,  C.  C.  100. 

A  cheque  upon  a  banker,  drawn  more  than  twenty  miles  from 
London,  and  not  stamped,  has  been  held  not  to  be  a  hill  or  draft, 
within  the  repealed  statute  7  Geo.  3,  c.  50;  being  of  no  value,  nor  in 


1224  WRITTEN   INSTRUMENTS. 

any  way  availal)le.  R.  v.  Poolcy,  Russ.  &  Ry.  12.  So  a  cheque  on  a 
banker,  made  payable  to  A.  15.,  and  not  to  bearer,  not  being  stamped, 
has  been  decided  by  the  judges  not  to  be  a  valuable  security  within 
the  meaning  of  the  repealed  statute  7  &  8  Geo.  4,  c.  29.  the  banker 
being  subject  to  a  penalty  of  50/.  by  paying  it.  R.  v.  Yates,  1  Moo. 
C.  C.  170.  But  where  A.  was  indicted  in  one  count  for  stealing  a 
cheque,  and  in  another  count  fur  stealing  a  piece  of  paper  ;  and  it 
was  proved  that  the  Great  Western  Raihvay  Company  drew  in 
London  a  cheque  on  their  London  bankers,  and  sent  it  to  one  of 
their  officers  at  Taunton  to  pay  a  poor-rate  there,  who,  at  Taunton, 
gave  it  to  the  prisoner,  a  clerk  of  the  company,  to  take  to  the  overseer, 
but  instead  of  doing  so,  he  converted  it  to  his  own  use;  it  was  held 
that  even  if  the  cheque  was  void  under  the  13th  section  of  the  statute 
55  Geo.  3,  c.  184  (repealed),  the  prisoner  might  be  properly  convicted 
on  the  count  for  stealing  a  piece  of  paper.  Ji.  v.  Perry,  1  Den.  C.  C. 
69  ;  1  C.  &  K.  725,  47  E.  C.  L.;  see  also  the  same  case  reserved  for 
the  consideration  of  the  judges,  and  similarly  decided,  1  Cox,  C.  C. 
222 ;  and  the  cases  of  R.  v.  \\'^alsh,  and  R.  v.  Metcalfe,  avte,  pp.  684, 
685 ;  also  R.  v.  Heath,  2  jSIoo.  C.  C.  33 ;  see  cases  on  ''  Forgery," 
ante,  p.  574. 

An  indictment  under  section  27  must  particularize  the  kind  of 
valuable  security  stolen,  and  any  material  variance  between  such 
*QQP1  '''description  and  the  evidence,  if  not  amended,  will  be  fatal.  R. 
^^^-1   V.  Lowrie,  L.  R.  1  C.  C.  R.  61  ;  36  L.  J.,  M.  C.  24. 

See  as  to  the  meaning  of  the  term  "  valuable  security,"  supra,  p. 
640. 

Taking  with  a  fraudulent  purpose.  Two  actions  had  been  brought 
against  the  prisoner  and  warrants  of  execution  had  issued,  and  a  levy 
had  been  made  by  the  high  bailiif,  v/ho  then  handed  the  warrants  to 
his  deputy,  who  remained  in  possession.  The  prisoner  forcibly  took 
the  warrants  out  of  the  deputy  bailiff's  hands,  and  kept  them.  He 
then  forcibly  turned  the  bailiff  out.  It  was  held,  he  was  not  guilty 
of  larceny,  but  of  taking  with  a  fraudulent  purpose.  "He  had  acted 
as  he  did  in  order  to  take  possession  of  the  goods  and  turn  the  bailiff 
out.  That  would  be  in  fraud  of  the  execution  and  in  fraud  of  the 
law,  and  would  constitute  a  fraudulent  purpose  within  the  meaning 
of  the  statute."  Per  Cockburn,  C.  J.,  R.  v.  Bailey,  L.  R.,  1  C.  C. 
R.  347  •  41  L.  J.,  M.  C.  61. 


INFANCY.  1225 


♦GENERAL  MATTERS  OF  DEFENCE. 


[*997 


There  are  certain  general  matters  of  defence^  the  evidence  with  re- 
gard to  which  it  will  be  convenient  to  comprise  under  the  three  fol- 
lowing heads  : — Infancy,  Insanity,  and  Coercion  by  Husband. 


INFANCY. 

PAQE 

Infancy ,        ,        997 

In  cases  of  misdemeanors       ........    997 

In  cases  of  felony 997 

An  infant  is,  in  certain  cases,  and  under  a  certain  age,  privileged 
from  punishment,  by  reason  of  a  presumed  want  of  criminal  design.^ 

In  eases  of  misdemeanors.  In  certain  misdemeanors  an  infant  is 
privileged  under  the  age  of  twenty-one,  as  in  cases  of  nonfeasance  only, 
for  laches  shall  not  be  imputed  to  him,  1  Hale,  P.  C.  20 ;  aud  for  not 
repairing  a  bridge  or  highway,  or  other  similar  offences,  unless  in  the 
case  of  repair  when  he  may  be  perhaps  bound  to  do  so  by  reason  of 
his  tenure,  though  even  then  it  seems  he  '\vould  not  be  liable  to  fine  or 
imprisonment.  R.  v.  Sutton,  3  A.  &  E.  597,  30  E.  C.  L.  But  he  is 
liable  for  misdemeanors  accompanied  with  force  and  violence,  as  a  riot 
or  battery.  1  Hale,  P.  C.  20.  So  for  perjury.  Sid.  253.  So  he  may 
be  convicted  of  a  forcible  entry,  4  Bac.  Ab.  591 ;  or  cheating  or  the 
like,  Bac.  Ab.  Infancy,  H.^ 

In  cases  of  felony.  Under  the  age  of  seven  years,  an  infant  can- 
not be  punished  for  a  capital  offence,  not  having  a  mind  doll  caj^ax  ; 
1  Hale,  P.  C.  19  ;  nor  for  any  other  felony,  for  the  same  reason.  Id. 
27.  But  on  attaining  the  age  of  fourteen  he  is  obnoxious  to  capi- 
tal (and  of  course  to  any  minor)  punishment,  for  offences  committed 
by  him  at  any  time  after  that  age.     1  Hale,  P.  C.  25. 

With  regard  to  the  responsibility  of  infants,  between  the  ages  of 
seven  and  fourteen,  a  good  deal  of  doubt  formerly  ])revailed,  but  it  is 
now  qnite  clear,  that  where  the  circumstances  of  the  case  show  that 
the  offender  was  ca])able  of  distinguishing  between  right  and  wrong, 
and  that  he  acted  Avith  malice  and  an  evil  intention,  he  may  be  con- 

nVheeler's  C.  C.  231.    S. 

*See  Wood  v.  Commonvvealtli,  3  Leigh,  743.  An  infant  only  a  year  or  two  old, 
upon  whose  lands  a  nuisance  is  erected,  cannot  be  made  criminally  answerable  for  it. 
People  V.  Townsend  et  al.,  3  Hill,  479.  Although  a  minor,  within  the  age  of  twenty- 
one  years,  cannot  be  made  responsible  civ'diler  for  goods  obtained  by  false  pretences, 
he  mnv  be  proceeded  against  criminaliter,  under  the  statute.  People  ?;.  Kendall, 
25  Wend.  399.    S. 


1226  INFANCY. 

victed  even  of  a  capital  offence  ;  ^  and  accordingly  there  are  many 
cases,  several  of  them  very  early  ones,  in  which  infants,  under  the  age 
of  fourteen,  have  been  convicted  and  executed.  Thus  in  1(329,  an  in- 
fant between  eight  and  nine  years  of  age  was  convicted  of  burning  two 
barns  in  the  town  of  Windsor,  and  it  appearing  that  he  had  malice, 
revenge,  craft,  and  cunning,  he  was  executed.  K.  v.  Dean,  1  Hale, 
P.  C.  25  (n). 

♦QQ^I  *  Lord  Hale  mentions  two  instances  to  the  same  effect, 
-I  one  of  a  girl  of  thirteen,  executed  for  killing  her  mistress,  and 
another  of  a  boy  of  ten  for  the  murder  of  his  companion.  1  Hale, 
P.  C.  26;  Fitz.  Ab.  Corone,  118.  In  the  year  1748  a  boy  of  ten 
years  of  age  was  convicted  of  murder,  and  the  judges,  on  a  reference 
to  them,  were  unanimously  of  opinion  that  the  conviction  was  right. 
R.  V.  York,  Foster,  70. 

An  infant  under  the  age  of  fourteen  years  is  presumed  by  law  un- 
able to  commit  a  rape,  and  though  in  other  felonies,  malltia  supplet 
cetalem,  yet,  as  to  this  fact,  the  law  presumes  the  want  of  ability,  as 
well  as  the  want  of  discretion.  But  he  may  be  a  principal  in  the  sec- 
ond degree,  as  aiding  and  assisting,  though  under  fourteen  years,  if  it 
appears  that  he  had  a  mischievous  intention.  1  Hale,  P.  C.  080  ;  R. 
V.  Eldershaw,  3  C.  &  P.  396,  14  E.  C.  L.;  see  further,  ante,  tit. 
"  Pvape." 

It  is  necessary,  says  Lord  Hale,  speaking  of  convictions  of  infants 
between  the  years  of  seven  and  twelve,  that  very  strong  and  pregnant 
evidence  should  be  given  to  convict  one  of  that  age.  1  Hale,  P.  C 
27  ;  4  Bl.  Com.  23.  And  he  recommends  a  respiting  of  judgment 
till  the  king's  pleasure  be  known.     Id. 

'  Commonwealth  v.  Keagy,  1  Ashmead,  248  ;  State  v.  Aaron,  1  Southard,  231 ;  Com- 
monwealth V.  Krouse,  O.  &  T.  Phila.,  Sept.,  1835,  before  Judge  King.     S. 

Children  under  the  age  of  fourteen  are  presiuned  to  be  not  criminally  responsible. 
This  presumption  is  conclusive  imder  the  age  of  seven.  Between  seven  and  fourteen 
the  presumption  may  be  rebutted.  In  order  to  show  that  the  child  is  doli  capax  evi- 
dence of  similar  acts  is  admissible.    State  v.  McDonald,  14  K.  I,  270. 


INSANITY.  1227 


•INSANITY. 


[*999 


PAGE 

Cases  in  which  the  prisoner  has  been  held  not  to  be  insane     .        .  1000 

in  whieli  the  prisoner  has  been  lieKl  to  be  insane         .         .  1002 

Opinions  of  the  judges  on  questions  propounded  by  the  house  of  lords  1004 

Cases  of  insanity  caused  by  intoxication       .        .        .        •        ,  1009 

The  inability  of  insane  persons  to  plead  has  been  dealt  with,  ante, 
p.  199.  By  the  46  &  47  Vict.  c.  38,  s.  2,  the  jury  may  return  a 
special  verdict  that  "  the  accused  was  guilty  of  the  act  or  omission 
chars^ed  against  him,  but  was  insane  at  the  time  when  he  did  the  act 
or  made  the  omission." 

The  defence  of  insanity  is  one  involving  great  difficulties  of  various 
kinds,  and  the  rules  which  have  occasionally  been  laid  down  by  the 
judges  with  regard  to  the  nature  and  degree  of  aberration  of  mind 
which  will  excuse  a  person  from  punishment,  are  by  no  means 
consistent  with  each  other,  or,  as  it  should  seem,  with  correct  prin- 
ciple.^ That  principle  appears  to  be  well  laid  down  in  the  following 
passage  : — 

^  Wheel,  C.  C.  48  ;  Jackson  v.  Van  Dusen,  5  Johns.  158  ;  Commonwealth  v.  Rogers, 
7  Mete.  500.  On  a  trial  for  murder,  a  physician  liaving  stated  on  examination  in 
chief  that  the  prisoner  was  insane,  he  may  be  asked  on  cross-examination,  whether, 
in  his  opinion,  the  prisoner  knew  right  from  wrong,  or  that  it  would  be  wrong  for 
him  to  commit  murder,  rape,  or  arson.  Clark  r.  State,  12  0.  St.  483.  [See  U.  S.  v.  Gui- 
teau,  1  Mackey,  (D.  C.)  498.  A  physician's  doubt  as  to  whether  a  man  is  sane  is  not 
evidence.  Sancliey  v.  People,  22  N.  Y.  147.]  It  is  not  every  kind  or  degree  of  insanity 
which  exempts  from  punishment.  If  the  accused  understood  the  nature  of  his  act, 
if  he  knew  it  was  wrong  and  deserved  punislmient,  he  is  responsible.  United  States  v. 
McGlue,  1  Curt.  C.  C.  1 ;  United  States  v.  Shults,  6  McL.  121 ;  State  v.  Hunting,  21 
Mo.  464.  [In  New  York,  insanity  as  a  defence,  depends  on  a  capacity  to  imderstand. 
People  V.  Walworth,  4  N.  Y.  Crim.  Rep.  355.]  To  sustain  the  defence  of  insanity,  it 
must  appear  that  the  party  accused  was  laboring  under  such  a  defect  of  reason,  from 
disease  of  the  mind,  as  not  to  know  the  nature  and  quality  of  the  act  he  was  doing; 
or  if  he  did  understand  them,  that  he  did  not  know  he  was  doing  what  was  wrong. 
Kelly  V.  State,  3  Sm.  &  Marsh.  518  ;  State  v.  Spencer,  1  Zab.  197  ;  [I'eople  v.  JMcDonell, 
47  Cal.  134.]  On  questions  of  sanity,  the  rule  as  to  reasonable  doubt  does  not  apply, 
but  it  is  for  him  that  alleges  insanity  to  prove  it.  State  v.  Starling,  6  Jones's  Law, 
366 ;  Newcomb  v.  State,  37  Miss.  383  ;  Loeflher  v.  State,  10  O.  St.  598  ;  Fisher  r.  People, 
23  111.  283  ;  r>onfanti  r. State,  2  Minn.  123  ;  Graham  ('.Commonwealth,  16  B.  Mon  587. 
[State  I'.  Hanley,  34  Minn.  430 ;  State  v.  Paulk,  18  S.  C.  514 ;  State  v.  De  Ranee,  34  La, 
An.  186 ;  s.  c .  44  Am.  Rep.  426  ;  People  v.  Messersmith,  61  Cal.  246.  The  presumption 
is  tliat  every  man  is  sane  until  he  is  proved  otherwise.  O'Connell  v.  People,  87  N.  Y. 
377  ;  State  v.  Smith,  53  Mo.  267 ;  Coyle  r.  Commonwealth,  100  Pa.  St.  573.  But  wliere 
there  is  testimony  of  insanity,  the  burden  is  on  the  State  to  prove  the  prisoner  sane. 
Ballard  v.  State,  19  Neb.  609.]  The  prisoner  is  entitled  to  the  benefit  of  any  doubt  upon 
the  question  of  sanity.  People  v.  McCann,  1 6  N.  Y.  (Ct.  of  App.)  58.  [Insanity  as  a  de- 
fence is  subject  to  the  usual  rules  of  "  reasonable  doubt."  Dacey  v.  People,  116  111.  555. 
Though  it  is  error  for  the  court  to  charge  to  the  contrary,  yet  where  the  defendant  has 
not  been  prejudiced,  a  new  trial  will  not  be  granted.  State  v.  Payne,  86  N.  C.  609. 
Where  the  court  has  charged  the  jury  that  they  might  find  the  prisoner  insane  at  the  time 
of  the  homicide,  it  is  error  to  refuse  to  charge  them  that  if  he  was  insane,  statements 


1228  INSANITY.- 

To  amount  to  a  complete  bar  of  punishment,  either  at  the  time  of 
committing;  the  offence,  or  of  the  trial,  the  insanity  must  have  been 
of  such  a  kind  as  entirely  to  deprive  tlie  prisoner  of  the  use  of  reason, 
as  applied  to  the  act  in  question,  and  of  the  knowledge  that  he  was 
doin*^'  wrong  in  committing  it.  If,  though  somewhat  deranged,  he  is 
yet  able  to  distinguish  riglit  from  wrong,  in  his  own  case,  and  to  know 
that  he  was  doing  wrong  in  the  act  which  he  committed,  he  is  liable 
to  the  full  punishment  of  his  criminal  acts.  Alison's  Princ.  Crim. 
Law  of  Scotl.  G45,  654. 

The  onus  of  proving  the  defence  of  insanity,  or,  in  the  case  of 
lunacy,  of  showing  that  the  offence  was  committed  when  the  prisoner 
was  in  a  state  of  lunacy,  lies  upon  the  prisoner.  See  Alison's  Princ. 
Crim.  Law  of  Scotl.  G59  ;  and  for  this  purpose  the  opinion  of  a  person 
possessing  medical  skill  is  admissible.  R.  v.  Wright,  Iluss.  &  Ry. 
456,  ante,  p.  147.  The  insanity  may  also  be  inferred  from  the  be- 
havior of  the  accused  and  other  facts  in  the  evidence.  R.  v.  Dart,  14 
Cox,  C.  C.  143.^ 

made  by  hira  sliould  be  disregarded.     People  v.  Wreden,  59  Cal.  392.     Where  the 
defence  is  insanity,  it  is  error  for  the  court  to  cliarge  that  the  jury  must  be  satisfied 
beyond  a  reasonable  doubt  that  the  prisoner  was  insane.     Meyers   v.  Commonwealth, 
83  Pa.  St.  131.]     If  the  jury  entertain  a  reasonable  doubt  of  the  sanity  of  the  prisoner, 
he  shall  be  acquitted.     State  v.  Marler,  2  Ala.   43.     Contra:  To  excuse  crime,   tlie 
jury  ouglit  to  be  satistied  of  the  insanity  beyond  reasonal)le  doubt.     State  v.  Spencer, 
1  Zab.  197.     Insanity  at  the  time  of  the  trial  may  be  proved  with  a  view  to  establish 
the  defence  of  insanity  when  the  act  was  committed.     Freeman  v.  People,  4  Denio,  9. 
The  subsequent  as  well  as  previous  acts  and  declarations  of  the  prisoner  are  admissi- 
ble to  sliow  his  true  mental  conlition  at  the  moment  of  the  crime.     McLean  c.  State, 
16  Ala.  672.     To  enable  the  defendant  to  take  advantage  of  insanity  as  a  defence,  it 
must  appear  that,  at  the  time,  he  was   so  deranged  as  not  to  know  tlie  nature  of  the 
oftence,  or  so  really  deluded  as  not  to  know  that  he  was  doing  wrong.     Fonts  u.  State, 
4  Green,  500.     An  oiler  of  the  prisoner's  counsel,  in  a  trial  for  murder,  to  show  that 
the  prisoner  was  of  a  very  low  order  of  intellect  and  very  ignorant,  but  disclaiming 
any  purpose  of  showing  him  to  be  non  compos  mentis,  was  held  to  have  been  rightly 
rejected.     Patterson  r.  People,  46  Barb.  625.     As  to  moral  insanity,  see  Scott  ?\  Com- 
monwealth, 4  Met.   (Ky).  227;  Hopps  r.  People,  31   111.385;  State  v.  Branden,  8 
Jones's  Law,  463 ;  Smith  v.  Commonwealth,  1  Duv.  224 ;  INIatter  of  P"'oreman,  54  Barb. 
274;  United  States  v.  Holmes,  1  Cliff.  C.  C.  98;  State  r.  (lut,  13  Minn.  341  ;  Stevens  v. 
State,  31  Ind.  485.     Under  an  indictment  for  murder,  the  defendant  may  introduce 
evidence  of  the  insanity  of  liis  parents,  if  there  is  evidence  in  the  case  tending  to 
prove  personal  insanity  by  reason  of  the  want  of  apparent  motive  at  the  time  of  the 
murder.     People  v.  Smith,  31  Cal.  466.     See  as  to  evidence  of  insanity  in  the  family, 
People  V.  Garbutt,  17  Mich.  9 ;  State  v.  Felter,  25  la.  67  ;  Cole's  Trial,  7  Abb.  Pr.  N. 
S.  321 ;  Bradley  v.  State,  31  Ind.  492;  rilagan  v.  State,  5  Baxter,  (Tenn.)  615;  State  v. 
Simms,  68  Mo.  305.]     See  generally  Willis  v.  People,  32  N.  Y.  715  ;  State  v.  Eeddick, 
7  Kan.   143;  State  v.  Ilavs,  22  La.  An.  39;  People  v.  Best,  39  Cal.  690;  People  v. 
Francis,  38  Cal.  183;  State  !'.  Lawrence,  57  jVIe.  574;  Cole's  Trial,  7  Abb.  Pr.  N.  S. 
321 ;  State  v.  Jones,  50  N.  IT.  369 ;  jMcFarland's  Case,  8  Abb.  Pr.  N.  S.  57,  89 ;  Brad- 
ley V.  State,  31  Ind.  492;  Poople  r.  Gorbutt,  17  jNIich.  9;  State  i'.  Haywood,  1  Phill. 
(Law)  376;  McKee  v.  Peoi)le,  36  N.  Y.  113;  People  i\  Kleim,  1  Fdm.  13;  People  v. 
Devine,  Id.  594;  People  r.  Griffin,  Id.  126;  O'Brien  ?•.  People,  48  Barb.  274;  State  r. 
Brown,  12  Minn.  538;  Choice  v.  State,  31  Ga.  424;  State  r.  Shapley,  10  Minn.  223; 
Walter  v.  People,  32  N.  Y.    147;  Commonwealth  v.  Heath,  11  Gray,  303;   State  v. 
McCoy,  34  Mo.  531 ;  People  r.  Myers,  20  Cal.  518  ;  Polk  v.  State,  19'  Ind.  170  ;  State 
V.  Bartlett,  43  N.  H.  224 ;  Lilly  v.  Waggoner,  27  111.  395 ;  People  v.  Coffman,  24  Cal. 
230;  Hopps  v.  People,  31  111.  385.    S.    Walsh  v.  People,  88  N.  Y.  458. 

^  Insanity,  from  time  to  time,  of  several  years'  duration,  prior  to  the  crime  rliarged 
■  may  be  proved  to  rebut  the  general  presumption  of  sanity  when  the  insanity  con- 


INSANITY.  1229 

If  the  jury  are  of  opinion  that  the  prisoner  did  not  in  fact  do  all 
that  the  law  requires  to  constitute  the  oifence  charged,  sup})osing  the 
prisoner  had  been  sane,  they  must  find  him  not  guilty  generally, 
and  the  court  have  no  power  to  order  his  detention,  although  the 
jury  should  find  that  he  was  in  fact  insane.  AVhere  therefore  on 
an  indictment  for  treason,  which  stated  as  an  overt  act,  that  the 
prisoner  discharged  a  pistol  loaded  with  powder  and  a  bullet  at  her 
Majesty,  the  jury  found  that  the  prisoner  was  insane  at  the  time 
when  he  discharged  the  pistol ;  but  whether  the  pistol  was  loaded 
with  ball  or  not,  there  was  no  satisfactory  evidence ;  the  court  ex- 
pressed a  strong  opinion  that  the  case  was  not  within  the  statute. 
*Lord  Denman,  C,  J.,  Patteson,  J.,  and  Alderson,  B.  E.  v.  r>K,nnn 
Oxford,  9  C.  &  P.  525,  38  E.  C.  L.;  1  Kuss.  by  Grcav.  L  ^^^^ 
18  {n). 

The  above  and  a  similar  outrage  led  to  the  passing  of  the  5  &  6 
Vict.  c.  51,  an  Act  for  the  protection  of  the  Queen's  person. 

A  man  was  indicted  for  shooting  at  his  wife  with  intent  to  murder 
her,  etc.,  and  was  defended  by  counsel,  who  set  up  for  him  the  defence 
of  insanity.  The  prisoner,  however,  objected  to  such  a  defence,  assert- 
ing that  he  was  not  insane ;  and  he  was  allowed  by  the  judge,  ]\Ir. 
Justice  Bosanquet,  to  suggest  questions,  to  be  put  by  the  learned  judge 
to  the  witnesses  for  the  prosecution,  to  negative  the  supposition  that 
he  was  insane  ;  and  the  judge  also,  at  the  request  of  the  prisoner, 
allowed  additional  witnesses  to  be  called  on  his  behalf  for  the  same 
purpose.  They,  however,  failed  in  showing  that  the  defence  was  an 
incorrect  one ;  on  the  contrary,  their  evidence  tended  to  establish  it 
more  clearly  ;  and  the  prisoner  was  acquitted  on  the  ground  of  insanity. 
E.  V.  Pearce,  9  C.  &  P.  667,  38  E.  C.  L. 

Cases  in  which  the  prisoner  has  been  held  not  to  be  insane.  la 
the  following  cases  the  defence  of  insanity  was  set  up,  but  without 
effect,  and  the  prisoners  were  convicted.  The  prisoner  was  indicted 
for  shooting  at  Lord  Onslow.  It  apjieared  that  he  was  to  a  certain 
extent  deranged,  and  had  misconceived  the  conduct  of  Lord  Onslow, 
but  he  had  formed  a  regular  design  to  shoot  him,  and  prepared  the 
means  of  effecting  it.  Tracy,  J.,  observed  that  the  defence  of  insanity 
must  be  clearly  made  out ;  that  it  is  not  every  idle  or  frantic  humor  of 

sists  of  a  delusion  connected  with  the  fatal  ad.  It  is  error  to  refuse  to  instruct  the 
jury  tliat  "  insanity  of  a  permanent  type  proved  to  have  once  existed  may  be  proved 
to  have  continued."  State  v.  Wilner,  40  Wisconsin,  804.  A  homicidal  mania,  if 
proved,  may  be  a  valid  defence  to  a  charge  of  murder.  C'oyle  v.  Common wealtli,  100 
Pa.  St.  573.  But  there  is  no  presumption,  merely  from  the  fact  that  the  defendant 
was  insane  a  short  time  before  the  commission  of  the  act,  that  he  was  insane  when 
he  committed  it.  People  v.  Smith,  57  ('al.  130.  But  see  State  v.  Johnson,  40  Conn. 
136.  Where  evidence  is  introduced  from  the  liistory  of  a  man's  life  to  show  tliat  his 
actions  can  only  be  accounted  for  by  insanity,  particular  acts  and  conduct  may  be  put 
in  in  rebuttal  to  s'now  that  his  conduct  did  not  require  such  an  explanation.  U.  S.  v. 
Guiteau,  1  Mackey.  (D.  C.)  498.  Where  on  a  criminal  charge  tlie  defence  is  insanity, 
the  records  of  a  probate  court  of  a  date  four  years  previous  to  the  alleged  oflence 
may  be  put  in  evidence  to  sliow  that  the  defendant  liad  then  been  adjudged  insane  arud 
confined  in  an  asylum.     Wheeler  v.  State,  34  Ohio,  394, 


1230  INSANITY. 

a  man,  or  somothino::  nnaccountablc  in  liis  actions,  which  will  show 
him  to  be  such  a  madman  as  to  exempt  him  from  punishment ;  bnt 
that  where  a  man  is  totally  deprived  of  understanding  and  memory, 
and  does  not  know  Avliat  he  is  doing  any  more  than  an  infant,  a  brute, 
or  a  wild  beast,  he  will  be  properly  exempted  from  punishment,  li.  v. 
Arnold,  CoUinson  on  Lunacy,  475;  16  How.  St.  Tr.  7G4,  7G5.  The 
doctrine  of  the  learned  judge  in  this  case  may,  perhaps,  be  thought  to 
be  carried  too  far  ;  for  if  the  prisoner,  in  committing  the  act,  is  de- 
prived of  the  power  of  distinguisliing  between  right  and  wrong  with 
relation  to  that  act,  it  does  not  appear  to  be  necessary  that  he  should 
not  know  what  he  is  doing.      Vide  post. 

Lord  Ferrers  was  tried  before  the  house  of  lords  for  the  murder  of 
his  steward.  It  was  proved  that  he  was  occasionally  insane,  and 
fancied  his  steward  to  be  in  the  interest  of  certain  su]>posed  enemies. 
The  steward  being  in  the  parlor  with  him,  he  ordered  him  to  go  down 
on  his  knees,  and  shot  him  Avith  a  pistol,  and  then  directed  his  servants 
to  put  him  to  bed.  He  afterwards  sent  for  a  surgeon,  but  declared  he 
was  nut  sorry ;  and  that  it  was  a  premeditated  act ;  and  he  would 
have  dragged  the  steward  out  of  the  bed,  had  he  not  confessed  him- 
self a  villain.  Many  witnesses  stated  that  they  considered  him  insane, 
and  it  appeared  that  several  of  his  relations  had  been  confined  as  luna- 
tics. It  was  contended  for  the  prosecution,  that  the  complete  posses- 
sion of  reason  was  not  necessary  in  order  to  render  a  man  answerable 
for  his  acts ;  it  was  sufficient  if  he  could  discriminate  between  good 
and  evil.  The  peers  unanimously  found  his  lordship  guilty.  R.  v. 
Earl  Ferrers,  19  How.  St.  Tr.  886. 

The  prisoner  was  indicted  for  shooting  at  and  wounding  W.  B. 
and  the  defence  was  insanity  arising  from  epilepsy.  He  had  been 
attacked  with  a  fit  on  the  9th  July,  1811  ;  and  was  brought  home 
apparently  lifeless.  A  great  alteration  had  been  produced  in  his 
*innn  *conduct,  and  it  was  necessary  to  watch  him,  lest  he  should 
-•  destroy  himself.  Mr.  Warburton,  the  keeper  of  a  lunatic 
asylum,  said  that  in  insanity  caused  by  epilepsy,  the  patient  often  in- 
bibed  violent  antipathies  against  his  dearest  friends,  for  causes  wholly 
imaginary,  which  no  persuasion  could  remove,  though  rational  on 
other  topics.  He  had  no  doubt  of  the  insanity  of  the  prisoner.  A 
commission  of  lunacy  was  produced,  dated  17th  June,  1812,  with  a 
finding  that  the  prisoner  had  been  insane  from  the  30th  of  March. 
[The  date  of  the  offence  committed  does  not  appear  in  the  report.] 
Le  Blanc,  J.,  concluded  his  summing  up  by  observing  that  it  was  for 
the  jury  to  determine  whether  the  prisoner,  when  he  committed  the 
offence  with  which  he  stood  charged,  was  capable  of  distinguishing 
between  right  and  wrong,  or  under  the  influence  of  any  illusion  in  re- 
spect of  the  prosecutor,  which  rendered  his  mind  at  the  moment  in- 
sensible of  the  nature  of  the  act  which  he  was  about  to  commit, 
since  in  that  case  he  would  not  be  legally  responsible  for  his  con- 
duct. On  the  other  hand,  provided  they  should  be  of  opinion  that 
when  he  committed  the  offence  he  was  capable  of  distinguishing  right 
from  wrong,  and  not  under  the  influence  of  such  an  illusion  as  dis- 


INSANITY.  1231 

aWccl  him  from  discovering  that  he  was  doing  a  wrong  act,  he 
would  be  answerable  to  the  justice  of  the  country,  and  guiky  in 
the  eye  of  the  law.  The  jury,  after  considerable  deliberation,  pro- 
nounced the  prisoner  guilty.  II.  v.  Eowlor,  Collinson  on  Lunacy, 
673  (u). 

The  prisoner  Avas  indicted  for  adhering  to  the  king's  enemies. 
His  deicnce  was  insanity.  lie  had  been  accounted  from  a  child  a 
person  of  weak  intellect,  so  that  it  surprised  many  that  he  had  been 
accepted  as  a  soldier.  Considerable  deliberation  and  reason,  however, 
were  disphiyed  by  him  in  entering  the  French  service,  and  he  stated  to 
a  comrade  that  it  was  much  more  agreeable  to  be  at  liberty,  and  have 
plenty  of  money,  than  to  remain  confined  in  a  dungeon.  The  attorney- 
general  in  reply,  said,  that  before  the  defence  could  have  any  weight  in 
rebutting  a  charge  so  clearly  made  out,  the  jury  must  be  satisfied  that 
at  the  time  the  offence  \vas  committed  the  prisoner  did  not  really 
know  right  from  wrong.  He  was  convicted.  K..  v.  Parker,  Collinson 
on  Lunacy,  477. 

The  direction  of  Mansfield,  C.  J.,  to  the  jury  in  R.  v.  Bellingham, 
seems  not  altogether  in  accordance  with  the  correct  rules  on  the 
subject  of  a  prisoner's  insanity.  He  said  that,  in  order  to  support 
such  a  defence,  it  ought  to  be  proved  by  the  most  distinct  and  un- 
questionable evidence,  that  the  prisoner  was  incapable  of  judging  be- 
tween right  and  wrong  ;  that  in  fact  it  must  be  proved  beyond  all 
doubt  that,  at  the  time  he  committed  the  act,  he  did  not  consider  that 
murder  was  a  crime  against  the  laws  of  God  and  nature,  ai\d  that  there 
was  no  other  proof  of  insanity  which  would  excuse  murder  or  any 
other  crime.  That  in  the  species  of  madness  called  lunacy,  where  per- 
sons are  subject  to  temporary  paroxysms,  in  which  they  are  gudty  of 
acts  of  extravagance,  such  persons  committing  crimes  when  they  are 
not  affected  by  the  malady,  would  be  answerable  to  justice,  and  that 
so  long  as  they  could  distinguish  good  from  evil,  they  would  be  answer- 
able for  their  conduct ;  and  that  in  the  species  of  insanity  in  which 
the  patient  fancies  the  existence  of  injury,  and  seeks  an  opportunity 
of  gratifying  revenge  by  some  hostile  act,  if  such  person  be  capable, 
in  other  respects,  of  distinguishing  between  right  and  wrong,  there 
would  be  no  excuse  for  any  act  of  atrocity  which  he  might  commit 
nnder  this  description  of  derangement.  The  prisoner  was  found 
*guilty  and  executed.  R.  v.  Bellingham,  Collinson  on  r*inn9 
Lunacy,  636 ;  Shelford  on  Lunacy,  462 ;  see  Offord's  ^ 
case,  5  C.  &  P.  168,  24  E.  C.  L.  The  above  direction  does  not  ap- 
pear to  make  a  sufficient  allowance  for  the  incapacity  of  judging  be- 
tween right  and  wrong  upon  the  very  matter  in  question,  as  in  all  cases 
of  monomania.  The  following  observations  of  an  eminent  writer  on 
the  criminal  law  of  Scotland  are  applicable  to  the  subject.  Although 
a  prisoner  understands  perfectly  the  distinction  between  right  and 
wrong,  yet  if  he  labors,  as  is  generally  the  case,  under  an  illusion  and 
deception  in  his  own  particular  case,  and  is  thereby  incapable  of  ap- 
plying it  correctly  to  his  own  conduct,  he  is  in  that  state  of  mental 
aberration  which  renders  him  not  criminally  answerable  for  his  actions. 


1232  INSANITY. 

For  example :  a  mad  person  may  bo  perfectly  aware  that  murder  is  a 
crime,  and  will  admit  that,  if  pressed  on  the  snbject ;  still  he  may 
conceive  that  a  homicide  he  has  committed  was  nowise  blameable,  be- 
cansc  the  deceased  had  engaged  in  a  conspiracy,  with  others,  against  his 
own  life,  or  was  his  mortal  enemy  who  had  wounded  him  in  his  dearest 
interests,  or  was  the  devil  incarnate,  whom  it  was  the  duty  of  every 
good  Christian  to  meet  with  weapons  of  carnal  warfare.  Alison's 
Trine.  Crim.  Law,  Scotl.  645,  citing  1  Hume,  37,  38.  And  see 
the  observations  on  R.  v.  Bellingham,  Alison,  658.  R.  v.  Oxford, 
post,  p.  1004. 

See,  too,  as  to  delusions,  R.  v.  Townley,  3  F.  &  F.  839,  and  R.  v. 
Burton,  3  F.  &  F.  772. 

It  has  been  justly  observed,  that  the  plea  of  insanity  must  be  re- 
ceived with  much  more  diffidence  in  cases  proceeding  from  the  de- 
gire  of  gain,  as  theft,  swindling,  or  forgery,  which  generally  require 
some  art  and  skill  for  their  completion,  and  argue  a  sense  of  the 
advantage  of  acquiring  other  people's  property.  On  a  charge  of 
horse-stealing,  it  was  alleged  that  the  prisoner  was  insane,  but  as  it 
appeared  that  he  had  stolen  the  horse  in  the  night,  conducted  himself 
prudently  in  the  adventure,  and  ridden  straight  by  an  unfrequented 
road  to  a  distance,  sold  it,  and  taken  a  bill  for  the  price,  the  defence 
was  overruled.  R.  v.  Henderson,  Alison's  Princ.  Criminal  Law, 
Scotl.  655,  656. 

Cases  in  which  the  prisoner  has  been  held  to  be  insane.  James 
Hadlield  was  tried  in  the  court  of  K.  B.  in  the  year  1800,  on  an 
indictment  for  high  treason,  in  shooting  at  the  king  in  Drury  Lane 
Theatre,  and  the  defence  made  for  the  prisoner  was  insanity.  It  was 
proved  that  he  had  been  a  private  soldier  in  a  dragoon  regiment,  and 
in  the  year  1793  received  many  severe  wounds  in  battle  near  Lisle, 
which  had  caused  partial  derangement  of  mind,  and  he  had  been 
dismissed  from  the  army  on  account  of  insanity.  Since  his  return 
to  this  country,  he  had  been  annually  out  of  his  mind  from  the 
beginning  of  spring  to  the  end  of  the  dog-days,  and  had  been  under 
confinement  as  a  lunatic.  When  affected  by  his  disorder,  he  imagined 
himself  to  hold  intercourse  with  God  :  sometimes  called  himself  God, 
or  Jesus  Christ,  and  used  other  expressions  of  the  most  irreligious 
and  blasphemous  kind,  and  also  committed  acts  of  the  greatest  ex- 
traA^agance ;  but  at  other  times  he  appeared  to  be  rational,  and  dis- 
covered no  symptom  of  mental  incapacity  or  disorder.  On  the  14th 
May  preceding  the  commission  of  the  act  in  question  his  mind  was 
very  much  disordered,  and  he  used  many  blasphemous  expressions. 
At  one  or  two  o'clock  on  the  following  morning  he  suddenly  jumped 
out  of  bed,  and,  alluding  to  his  child,  a  boy  of  eight  months  old,  of 
*1 00*^1  *^vlioi''i  ^iG  was  usually  remarkably  fond,  said  he  was  about  to 
■J  dash  his  brains  out  against  the  bed[)ost,  and  that  God  had  or- 
dered him  to  do  so  ;  and,  upon  his  wife  screaming  and  his  friends  com- 
ing in,  he  ran  into  a  cupboard,  and  declared  he  would  lie  there,  it 
should  be  his  bed,  and  God  hrd  said  so ;  and  when  doing  this,  having 


INSANITY.  1233 

overset  some  water,  he  said  lie  had  lost  a  great  deal  of  blood.  On  the 
same  and  the  following  day  he  used  many  incoherent  and  blasphem- 
ous expressions.  On  the  morning  of  the  15th  May  he  seemed  worse, 
said  that  he  had  seen  God  in  the  night,  that  the  coach  was  in  waiting, 
and  that  he  had  been  to  dine  with  the  king.  lie  spoke  very  highly  of 
the  king,  the  royal  family,  and  particularly  of  the  Duke  of  York.  He 
then  Avent  to  his  master's  workshop,  whence  he  returned  to  dinner  at 
two,  but  said  that  he  stood  in  no  need  of  meat,  and  could  live  without 
it.  He  asked  for  tea  between  three  and  four  o'clock,  and  talked  of 
being  made  a  member  of  the  Society  of  Odd  Fellows ;  and  after  re- 
peating his  irreligious  expressions,  went  out  and  repaired  to  the 
theatre.  On  the  part  of  the  crown  it  was  proved  that  he  had  sat  in 
his  place  in  the  theatre  nearly  three-quarters  of  an  hour  before  the 
king  entered  ;  that  at  the  moment  when  the  audience  rose  on  his 
maicst}''s  entering  his  box,  he  got  up  above  the  rest,  and  presenting 
a  pistol  loaded  with  slugs,  fired  it  at  the  king's  person,  and  then  let 
it  drop  ;  that  when  he  fired,  his  situation  appeared  favorable  for 
taking  aim,  for  he  was  standing  upon  the  second  seat  from  the 
orchestra,  in  the  pit ;  and  he  took  a  deliberate  aim,  by  looking  down 
the  barrel  as  a  man  usually  does  when  taking  aim.  On  his  appre- 
hension, amongst  other  expressions,  he  said  he  knew  perfectly 
well  his  life  was  forfeited  ;  that  he  was  tired  of  life,  and  regretted 
notliing  but  the  fate  of  a  woman  who  was  his  wife,  and  would  be  his 
wife  a  few  days  longer,  he  supposed.  These  words  he  sj^oke  calmly, 
and  without  any  apparent  derangement ;  and  with  equal  calmness 
repeated  that  he  was  tired  of  life,  and  said  that  his  plan  was  to 
get  rid  of  it  by  any  means,  that  he  did  not  intend  anything  aganist 
the  life  of  the  king,  for  he  knew  the  attempt  only  would  answer  his 
purpose.  The  counsel  for  the  prisoner  put  the  case  as  one  of  a  species 
of  insanity  in  the  nature  of  a  vim-bid  delusion  of  the  intellect,  and  ad- 
mitted that  it  was  necessary  for  the  jury  to  be  satisfied  that  the  act 
in  question  was  the  immediate  unqualified  offspring  of  the  disease. 
Lord  Kenyon,  C.  J.,  held,  that  as  the  prisoner  was  deranged  imme- 
diately before  the  offence  was  committed,  it  was  improbable  that 
he  had  recovered  his  senses  in  the  interim ;  and  although,  were 
they  to  run  into  nicety,  proof  might  be  demanded  of  his  insanity  at 
the  precise  moment  when  the  act  was  committed,  yet,  there  being  no 
reason  for  believ^ing  the  prisoner  to  have  been  at  that  period  a  rational 
and  accountable  being,  he  ought  to  be  acquitted,  and  was  acquittetl 
accordingly.  R.  v.  Pladfield,  Collinson  on  Lunacy,  480;  1  Russ.  Cri. 
120,  5th  ed. 

The  prisoner  was  indicted  for  setting  fire  to  the  cathedral  church 
of  York.  The  defence  was  that  he  was  insane.  It  was  proved  that 
he  was  much  under  the  influence  of  dreams,  and  in  court  he  gave  an 
incoherent  account  of  a  dream  that  had  induced  him  to  commit  the 
act,  a  voice  commanding  him  to  destroy  the  cathedral  on  account  of 
the  misconduct  of  the  clergy.  Several  medical  witnesses  stated  their 
opinions  that  he  was  insane,  and  that,  when  laboring  under  his 
delusion,  he  could  not  distinguish  right  from  wrong.  One  surgeon 
78 


1234  INSANITY. 

said  that  such  persons,  though  incapable  on  a  particular  subject  of 
-.  *(listinguishing  right  from  wrong,  seek  to  avoid  tlie danger con- 
-1  sequent  upon  their  actions,  and  that  they  frequently  run  away 
and  display  great  cunning  in  escaping  punishment.  The  jury  ac- 
quitted the  prisoner  on  the  ground  of  insanity.  R.  v.  Martin,  Shel- 
ford  on  Lunacy,  465;  Annual  Register,  vol.  71,  pp.  71,  301. 

In  R.  V.  Oxford,  Lord  Denman,  C.  J.,  made  tlie  following  obser- 
vations to  the  jury  :  "  Persons  must  be  taken  to  be  of  sound  mind  till 
the  contrary  is  shown.  But  a  person  may  commit  a  criminal  act  and 
not  be  responsible.  If  some  controlling  disease  was  in  truth  the 
acting  power  within  him,  which  he  could  not  resist,  then  he  will  not 
be  responsible.  It  is  not  more  important  than  difficult  to  lay  down 
the  rule.  .  .  .  On  the  part  of  the  defence  it  is  contended  that  the  pris- 
oner was  non  compos  mentis,  that  is  (as  it  has  been  said),  unable  to 
distinguish  right  from  wrong,  or  in  other  words,  that  from  the  effect 
of  a  deceased  mind,  he  did  not  know  at  the  time  that  the  act  he  did 
was  wrong.  .  .  .  Something  has  been  said  about  the  power  to  con- 
tract and  to  make  a  will.  But  I  think  that  those  things  do  not 
supply  any  test.  The  question  is,  whether  the  prisoner  was  laboring 
under  that  species  of  insanity  which  satisfies  you  that  he  was  quite 
unaware  of  the  nature,  character,  and  consequence  of  the  act  he  was 
committing,  or,  in  other  words,  whether  he  was  under  the  influence 
of  a  diseased  mind,  and  was  really  unconscious  at  the  time  he 
was  committing  the  act,  that  it  was  a  crime."  9  C.  &  P.  525,  38 
E.  C.  L. 

Opinions  of  the  judges  on  questions  propounded  by  the  house 
of  lords.  In  consequence  of  acquittal  on  the  ground  of  insanity  of 
Daniel  M'Naughten  for  shooting  Mr.  Drummond,  the  following  ques- 
tions of  law  were  propounded  by  the  house  of  lords  to  the  judges. 
(See  8  Scott's  N.  R.  595 ;  1  C  &  K.  130,  12  E.  C.  L.f 

"  1.  What  is  the  law  respecting  alleged  crimes  committed  by  per- 
sons afflicted  with  insane  delusion  in  respect  of  one  or  more  particular 
subjects  or  persons ;  as,  for  instance,  where,  at  the  time  of  the  commis- 
sion of  the  alleged  crime,  the  accused  knew  he  was  acting  contrary  to 
law,  but  did  the  act  complained  of  with  a  view,  under  the  influence 
of  insane  delusion,  of  redressing  or  revenging  some  supposed  griev- 
ance or  injury,  or  of  producing  some  supposed  public  benefit? 

"  2.  What  are  the  proper  questions  to  be  submitted  to  the  jury 
when  a  person  alleged  to  be  afflicted  with  insane  delusions  respecting 
one  or  more  particular  subjects  or  persons  is  charged  with  the  com- 
mission of  a  crime  (murder,  for  example),  and  insanity  is  set  up  as  a 
defence  ? 

"  3.  In  what  terms  ought  the  question  to  be  left  to  the  jury 
as  to  the  prisoner's  state  of  mind  at  the  time  when  the  act  was 
committed  ? 

1  Sanches  v.  People,  4  Parker,  C.  R.  535 ;  Bovard  v.  State,  30  Miss.  600 ;  State  v. 
Windsor,  5  Harrington,  512.    S. 


INSANITY.  1235 

"  4.  If  a  person  under  an  insane  delusion  as  to  existing  facts  com- 
mits an  offence  in  consequence  thereof,  is  he  hereby  excused  ? 

"  5.  Can  a  medical  man  conversant  with  tlie  disease  of  insanity, 
who  never  saw  the  prisoner  previously  to  the  trial,  but  who  was  pres- 
ent during  the  whole  trial,  and  the  examination  of  all  the  witnesses, 
be  asked  his  opinion  as  to  the  state  of  the  prisoner's  mind  at  the  time 
of  the  commission  of  the  alleged  crime  ;  or  his  opinion  whether  the 
prisoner  was  conscious  at  the  time  of  doing  the  act  that  he  was  acting 
contrary  to  law,  or  whether  he  was  laboring  under  any  and  what  de- 
lusion at  the  time  ?" 

*Maule,  J. — I  feel  great  difficulty  in  answering  the  questions  r^^^  p.^.  ^ 
put  by  your  lordships  on  this  occasion  : — First,  because  they  ^ 
do  not  appear  to  arise  out  of  and  are  not  put  with  reference  to  a  par- 
ticular case,  or  for  a  particular  purpose,  which  might  explain  or  limit 
the  generality  of  their  terms,  so  that  full  answers  to  them  ought  to  be 
applicable  to  every  possible  state  of  facts  not  inconsistent  with  those 
assumed  in  the  questions ;  and  this  difficulty  is  the  greater,  from  the 
practical  experience  both  of  the  bar  and  the  court  being  confined  to 
questions  arising  out  of  the  facts  of  particular  cases  ;  secondly,  because 
I  have  heard  no  argument  at  your  lordships'  bar  or  elsewhere  on  the 
subject  of  these  questions,  the  want  of  which  I  feel  the  more,  the 
greater  is  the  number  and  extent  of  questions  which  might  be  raised 
in  argument :  and,  thirdly,  from  a  fear,  of  which  I  cannot  divest 
myself,  that,  as  these  questions  relate  to  matters  of  criminal  law  of 
great  importance  and  frequent  occurrence,  the  answers  to  them  by  the 
judges  may  embarrass  the  administration  of  justice  when  they  are  cited 
in  criminal  trials.  For  these  reasons  I  should  have  been  glad  if  my 
learned  brethren  would  have  joined  me  in  praying  your  lordships  to 
excuse  us  from  answering  these  questions  :  but,  as  I  do  not  think  they 
ought  to  induce  me  to  ask  that  indulgence  for  myself  individually,  I 
shall  proceed  to  give  such  answers  as  I  can,  after  the  very  short  time 
which  I  have  had  to  consider  the  questions,  and  under  the  difficulties 
I  have  mentioned,  fearing  that  my  answers  may  be  as  little  satisfac- 
tory to  others  as  they  are  to  myself. 

The  first  question,  as  I  understand  it,  is,  in  effect.  What  is  the  law 
respecting  alleged  crime,  when  at  the  time  of  the  commission  of  it, 
the  accused  knew  he  was  acting  contrary  to  the  law,  but  did  the  act 
with  a  view,  under  the  influence  of  insane  delusion,  of  redressing  or 
revenging  some  supposed  grievance  or  injury,  or  of  producing  some 
supposed  public  benefit  ?  If  I  were  to  understand  this  question  ac- 
cording to  the  strict  meaning  of  its  terms,  it  would  require,  in  order 
to  answer  it,  a  solution  of  all  questions  of  law  which  could  arise  on 
the  circumstances  stated  in  the  question,  either  by  explicitly  stating 
and  answering  such  questions,  or  by  stating  some  principles  or  rules 
which  would  suffice  for  their  solution.  I  am  quite  unable  to  do  so, 
and,  indeed,  doubt  whether  it  be  possible  to  be  done ;  and  therefore 
request  to  be  permitted  to  answer  the  question  only  so  far  as  it  com- 
prehends the  question  whether  a  person,  circumstanced  as  stated  in 
the  question,  is  for  that  reason  only  to  be  found  not  guilty  of  a  crime 


1 236  INSANITY. 

respecting  which  the  question  of  his  gnilt  has  been  duly  raised  in  a 
criminal  proceeding;  and  I  am  of  opinion  that  he  is  not.  There  is 
no  law  that  I  am  aware  of  that  makes  persons  in  the  state  described 
in  the  question  not  responsible  for  their  criminal  acts.  To  render  a 
person  irresponsible  for  crime  on  account  of  unsoundness  of  mind, 
the  unsoundness  should,  according  to  the  law  as  it  has  long  been  un- 
derstood and  held,  be  such  as  to  render  him  incapable  of  knowing 
right  from  wrong.  The  terms  used  in  the  question  cannot  be  said 
(with  reference  only  to  the  usage  of  language)  to  be  equivalent  to  a 
description  of  this  kind  and  degree  of  unsoundness  of  mind.  If  the 
state  described  in  the  question  be  one  which  involves  or  is  necessarily 
connected  with  such  an  unsoundness,  this  is  not  a  matter  of  law,  but 
of  physiology,  and  not  of  that  obvious  and  familiar  kind  as  to  be 
inferred  without  proof. 

Secondly,  the  questions  necessarily  to  be  submitted  to  the  jury  are 
those  questions  of  fact  which  are  raised  on  the  record.  In  a  criminal 
*1  CiOPl  ^^'^"^^^  *^^^  question  commonly  is,  whether  the  accused  be  guilty 
-•  or  not  guilty  ;  but,  in  order  to  assist  the  jury  in  coming  to  a 
right  conclusion  on  this  necessary  and  ultimate  question,  it  is  usual  and 
proper  to  submit  such  subordinate  or  intermediate  questions  as  the 
course  which  the  trial  has  taken  may  have  made  it  convenient  to  direct 
their  attention  to.  What  those  questions  are,  and  the  manner  of  sub- 
mitting them,  is  a  matter  of  discretion  for  the  judge — a  discretion  to 
be  guided  by  a  consideration  of  all  the  circumstances  attending  the 
inquiry.  In  performing  this  duty,  it  is  sometimes  necessary  or  con- 
venient to  inform  the  jury  as  to  the  law  ;  and  if,  on  a  trial  such  as  is 
suggested  in  the  question,  he  should  have  occasion  to  state  wliat  kind 
and  degree  of  insanity  would  amount  to  a  defence,  it  should  be  stated 
conformably  to  what  I  have  mentioned  in  my  answer  to  the  first 
question,  as  being,  in  my  opinion,  the  law  on  this  subject. 

Thirdly,  there  are  no  terms  which  the  judge  is  by  law  required  to 
use.  They  should  not  be  inconsistent  with  the  law  as  above  stated, 
but  should  be  such,  as,  in  the  discretion  of  the  judge,  are  proper  to  assist 
the  jury  in  coming  to  a  right  conclusion  as  to  the  guilt  of  the  accused. 

Fourthly,  the  answer  which  I  have  given  to  the  first  question  is 
applicable  to  this. 

Fifthly,  whether  a  question  can  be  asked,  depends,  not  merely  on 
the  questions  of  fact  raised  on  the  record,  but  on  the  course  of  the 
cause  at  the  time  it  is  proposed  to  ask  it ;  and  the  state  of  an  inquiry 
as  to  the  guilt  of  a  person  charged  with  a  crime,  and  defended  on  the 
ground  of  insanity,  may  be  such  that  such  a  question  as  either  of 
those  suggested  is  proper  to  be  asked  and  answered,  though  the  wit- 
ness has  never  seen  the  person  before  the  trial,  and  though  he  has 
been  present  and  heard  the  witnesses ;  these  circumstances,  of  his 
never  having  seen  the  person  before,  and  of  his  having  been  present 
at  the  trial,  not  being  necessarily  sufficient,  as  it  seems  to  me,  to 
exclude  the  lawfulness  of  a  question  which  is  otherwise  lawful, 
though  I  will  not  say  that  an  inquiry  might  not  be  in  such  a  state  as 
that  these  circumstances  should  have  such  an  effect. 


INSANITY.  1237 

Supposing;  there  is  nothing  else  in  tlie  state  of  the  trial  to  make 
the  questions  suggested  })roper  to  be  asked  and  answered,  except  that 
the  witness  liad  been  present  and  heard  the  evidence,  it  is  to  be  con- 
sidered whether  that  is  enough  to  sustain  the  question.  In  principle 
it  is  open  to  this  objection,  that,  as  the  opinion  of  the  witness  is 
founded  on  those  eonc-lusions  of  fa(!t  which  he  forms  from  the  evi- 
dence, and  as  it  does  not  appear  what  those  conclusions  are,  it  may 
bo  that  the  evidence  he  gives  is  on  such  an  assumption  of  facts  as 
makes  it  irrelevant  to  the  inquiry.  But  such  questions  have  been 
very  frequently  asked,  and  the  evidence  to  which  they  are  directed 
has  been  given,  and  has  never,  that  I  am  aware  of,  been  successfully 
objected  to.  Evidence,  most  clearly  open  to  this  objection,  and  on 
the  admission  of  which  the  event  of  a  most  important  trial  probably 
turned,  was  received  in  the  case  of  The  Queen  v.  JM'Naugliten,  tried 
at  the  Central  Criminal  Court  in  March  last,  before  the  Lord  Chief 
Justice,  Mr.  Justice  Williams,  and  Mr.  Justice  Coleridge,  in  which 
counsel  of  the  highest  eminence  were  engaged  on  both  sides  ;  and  I 
think  the  course  and  practice  of  receiving  such  evidence,  confirmed  by 
the  very  highest  authority  of  these  judges,  who  not  only  received  it, 
but  lelt  it,  as  I  understand,  to  the  jury,  without  any  remark  de- 
rogating from  its  weight,  ought  to  be  held  to  warrant  its  reception, 
*notwithstanding  the  objection  in  principle  to  which  it  may  r^-inny 
be  open.  In  cases  even  where  the  course  of  practice  in  crimi-  L 
nal  law  has  been  uniavorable  to  parties  accused,  and  entirely  contrary 
to  the  most  obvious  principles  of  justice  and  humanity,  as  wx'll  as 
those  of  law,  it  has  been  held  that  such  practice  constituted  the  law, 
and  could  not  be  altered  without  the  authority  of  parliament. 

Tindal,  C.  J. — My  lords,  her  Majesty's  judges,  with  the  exception 
of  Mr.  Justice  Maule,  who  has  stated  his  opinion  to  your  lordships, 
in  answering  the  questions  proposed  to  them  by  your  lordships'  house, 
think  it  right,  in  the  first  place,  to  state  that  they  have  forborne 
entering  into  any  particular  discussion  upon  these  questions,  from 
the  extreme  and  almost  insuperable  difficulty  of  applying  those 
answers  to  cases  in  which  the  facts  are  not  brought  judicially  before 
them.  The  facts  of  each  particular  case  must  of  necessity  present 
themsefves  with  endless  variety,  and  with  every  shade  of  difference 
in  each  case  ;  and,  as  it  is  their  duty  to  declare  the  law  upon  each 
particular  case,  on  facts  proved  before  them,  and  after  hearing  argu- 
ments of  counsel  thereon,  they  deem  it  at  once  impracticable,  and 
at  the  same  time  dano-erous  to  the  administration  of  justice  if  it 
were  practicable,  to  attempt  to  make  minute  applications  oi,  the 
principles  involved  in  the  answers  given  by  them  to  your  lordships' 
questions. 

They  have,  therefore,  confined  their  answers  to  the  statement  of  that 
which  they  hold  to  be  the  law  upon  the  abstract  questions  proposed  by 
your  lordships ;  and,  as  they  deem  it  unnecessary,  in  this  peculiar 
case,  to  deliver  their  opinions  seriatim,  and  as  all  concur  in  the  same 
opinion,  they  desire  me  to  express  such  their  unanimous  opinion  to 
your  lordships. 


1238  INSANITY. 

The  first  qiiostion  proposed  by  your  lordsliips  is  this  : — "What  is 
the  law  respceting  alleged  crimes  committed  by  persons  afflicted  with 
insane  delusion  in  respect  of  one  or  more  particular  subjects  or  persons  ; 
as,  for  instance,  where  at  the  time  of  the  commission  of  the  alleged 
crime,  the  accused  knew  he  was  acting  contrary  to  law,  but  did  the  act 
complained  of  with  a  view,  under  the  influence  of  insane  dehision,  of 
redressing  or  revenging  some  supposed  grievance  or  injury,  or  of  pro- 
ducing some  supposed  public  benefit  ?" 

In  answer  to  which  question,  assuming  that  your  lordships'  inquiries 
are  confined  to  those  persons  who  labor  under  such  partial  delusions 
only,  and  are  not  in  other  respects  insane,  we  are  of  oj*inion,  that  not- 
withstanding the  party  accused  did  the  act  complained  of  with  a  view, 
under  the  influence  of  insane  delusion,  of  redressing  or  revenging 
some  supposed  grievance  or  injury,  or  of  producing  some  jjublic  benefit, 
he  is  nevertheless  punishable  according  to  the  nature  of  the  crime  com- 
mitted, if  he  knew  at  the  time  of  committing  such  crime  that  he  was 
acting  contrary  to  law — by  Avhich  expression  we  understand  your  lord- 
ships to  mean  the  law  of  the  land. 

Your  lordships  are  pleased  to  inquire  of  us,  secondly,  "  What  are 
the  proper  questions  to  be  submitted  to  a  jury  when  the  person, 
alleged  to  be  afflicted  with  insane  delusion  respecting  one  or  more 
particular  subjects  or  persons,  is  charged  with  a  crime  (murder,  for 
example),  and  insanity  is  set  up  as  a  defence  ?"  And,  thirdly,  "  In 
what  terms  ought  the  question  to  be  left  to  the  jury  as  to  the  pris- 
oner's state  of  mind  at  the  time  when  the  act  was  committed  ?"  And, 
as  these  two  questions  appear  to  us  to  be  more  conveniently  answered 
*innsn  *together,  we  have  to  submit  our  ojiinion  to  be,  that  the  jury 
J  ought  to  be  told  in  all  cases  that  every  man  is  presumed  to 
be  sane,  and  to  possess  a  sufficient  degree  of  reason  to  be  responsible 
for  his  crimes,  until  the  contrary  be  proved  to  their  satisfaction  ;  and 
that,  to  establish  a  defence  on  the  ground  of  insanity,  it  must  be  clearly 
proved,  that  at  the  time  of  the  committing  of  the  act,  the  party  ac- 
cused was  laboring  under  such  a  defect  of  reason  from  disease  of  the 
mind,  as  not  to  know  the  nature  and  quality  of  the  act  he  was  doing, 
or,  if  he  did  know  it,  that  he  did  not  know  he  was  doing  what  was 
wrong.  The  mode  of  putting  the  latter  part  of  the  question  to  the 
jury  on  these  occasions  has  generally  been,  whether  the  accused,  at  the 
time  of  doing  the  act,  knew  the  difference  between  right  and  wrong ; 
which  mode,  though  rarely,  if  ever,  leading  to  any  mistake  with  the 
jury,  is  not,  as  Ave  conceive,  so  accurate  when  put  generally  and  in  the 
abstract,  as  when  put  with  reference  to  the  party's  knowledge  of  right 
and  wrong  in  respect  to  the*  very  act  with  which  he  is  charged.  If 
the  question  were  to  be  put  as  to  the  knowledge  of  the  accused,  solely 
and  exclusively  with  reference  to  the  law  of  the  land,  it  might  tend  to 
confound  the  jury,  by  inducing  them  to  believe  that  an  actual  knowl- 
edge of  the  law  of  the  land  was  essential  in  order  to  lead  to  a  con- 
viction ;  whereas  the  law  is  administered  upon  the  principle  that  every 
one  must  be  taken  conclusively  to  know  it,  without  proof  that  he  does 
know  it.     If  the  accused  was  conscious  that  the  act  was  one  which  he 


INSANITY.  '  1239 

ought  not  to  do,  and  if  that  aot  was  at  the  same  time  contrary  to  the 
law  of  the  land,  he  is  punishable ;  and  the  usual  course  therefore  has 
been,  to  leave  the  question  to  the  jury,  whether  the  party  accused  had 
a  sufficient  degree  of  reason  to  know  that  he  was  doing  an  act  that 
was  wrong ;  and  this  course  we  think  is  correct,  accompanied  with 
such  observations  and  explanations  as  the  circumstances  of  each  par- 
ticular case  may  require. 

The  fourth  question  which  your  lordships  have  proposed  to  us  is 
this  : — ''  If  a  person  under  an  insane  delusion  as  to  existing  fa(;ts  com- 
mits an  oifence  in  consequence  thereof,  is  he  thereby  excused  ?"  To 
which  question  the  answer  must  of  course  depend  on  the  nature  of  the 
delusion  ;  but,  making  the  same  assumption  as  we  did  before,  viz.,  that 
he  labors  under  such  partial  delusion  only,  and  is  not  in  other  respects 
insane,  we  think  he  must  be  considered  in  the  same  situation  as  to  re- 
sponsibility as  if  the  facts  with  respect  to  which  the  delusion  exists 
were  real.  For  example,  if  under  the  influence  of  his  delusion,  he 
supposes  another  man  to  be  in  the  act  of  attempting  to  take  away  his 
life,  and  he  kills  that  man,  as  he  supposes,  in  self-defence,  he  would  be 
exempt  from  punishment.  If  his  delusion  was  that  the  deceased  had 
inflicted  a  serious  injury  to  his  character  and  fortune,  and  he  killed  him 
in  revenge  for  such  supposed  injury,  he  would  be  liable  to  punishment. 

The  question  lastly  proposed  by  your  lordships  is  : — "  Can  a  medi- 
cal man,  conversant  with  the  disease  of  insanity,  who  never  saw  the 
prisoner  previously  to  the  trial,  but  who  was  present  during  the  whole 
trial,  and  the  examination  of  all  the  witnesses,  be  asked  his  opinion  as 
to  the  state  of  the  prisoner's  mind  at  the  time  of  the  commission  of 
the  alleged  crime  ;  or  his  opinion  whether  the  prisoner  was  conscious 
at  the  time  of  doing  the  act  that  he  was  acting  contrary  to  law,  or 
whether  he  was  laboring  under  any  and  what  delusion  at  the  time?" 
In  answer  thereto,  we  state  to  your  lordships,  that  we  think  the 
medical  man,  under  the  circumstances  supposed,  cannot  in  strictness 
*be  asked  his  opinion  in  the  terms  above  stated,  because  each  r*-|rirjq 
of  those  questions  involves  the  determination  of  the  truth  of  ^ 
the  facts  deposed  to,  which  it  is  for  the  jury  to  decide ;  and  the  ques- 
tions are  not  mere  questions  upon  a  matter  of  science,  in  which  case 
such  evidence  is  admissible.  But  where  the  facts  are  admitted,  or  not 
disputed,  and  the  question  becomes  substantially  one  of  science  only, 
it  may  be  convenient  to  allow  the  question  to  be  put  in  that  general 
form,  though  the  same  cannot  be  insisted  on  as  a  matter  of  right. 

Cases  of  insanity  caused  by  intoxication.  Intoxication  is  no  ex- 
cuse for  the  commission  of  crime.  The  prisoner,  after  a  paroxysm 
of  drunkenness,  rose  in  the  middle  of  the  night,  and  cut  the  throats 
of  his  father  and  mother,  ravished  the  servant-maid  in  her  sleep,  and 
afterwards  murdered  her.  Notwithstanding  the  fact  of  his  drunk- 
enness, he  was  tried  and  executed  for  these  offences.  R.  v.  Dey,  3 
Paris  &  Fonbl.  M.  J.  140  (n).  There  are  many  men,  it  is  said 
in  an  able  work  on  medical  jurisprudence,  soldiers  who  have  been 
severely  wounded  in  the  head  especially,  who  well  know  that  excess 


1240  .  INSANITY. 

makes  thorn  mad  ;  but  if  such  persons  wilfully  deprive  themselves  of 
rea.ion,  they  ought  not  to  be  excused  one  crime  by  the  voluntary 
perpetration  of  another.  3  Paris  &  Fonbl.  JNI.  J.  140,  But  if,  by 
the  long-  practice  of  intoxication,  an  habitual  or  fixed  insanity  is 
caused,  although  this  madness  was  contracted  voluntarily,  yet  the 
party  is  in  the  same  situation  with  regard  to  crimes,  as  if  it  had  been 
contracted  involuntarily  at  first,  and  is  not  punishable.  1  Hale,  P.  C. 
32.  A  disease  of  the  mind  caused  by  drunkenness — such  as  delirium 
tremens — relieves  from  criminal  responsibility,  per  Stephen,  J.  11.  v. 
Davis,  14  Cox,  C.  C.  563. 

Though  voluntary  drunkenness  cannot  excuse  from  the  commission 
of  crime,  yet  where,  as  upon  a  charge  of  murder,  the  question  is, 
whether  an  act  was  premeditated,  or  done  only  from  sudden  heat  and 
impulse,  the  fact  of  the  party  being  intoxicated  has  been  held  to  be  a 
circumstance  proper  to  be  taken  into  consideration.^   l*er  Holroyd,  J., 

»  Pennsylvania  v.  McFall,  Add.  257.     [State  r.  Sneed,  88  Mo.  138.] 

Mere  intoxication  is  no  excuse  for  crime.  Evidence  of  it  may  be  admissible  to 
the  question  of  malice.     Kelly  v.  State,  3  Sm.  &  Mar.  518. 

If  a  person,  wliile  sane  and  responsible,  makes  himself  intoxicated,  and  while  in 
that  condition  commits  murder  by  reason  of  insanity,  which  was  one  of  the  conse- 
quences of  intoxication,  and  one  of  the  attendants  on  that  state,  he  is  responsible. 
United  States  v.  McGlue,  1  Curt.  C.  C.  1 ;  People  v.  Robinson,  2  Parker,  C.  R.  235 ; 
People  V.  Hamill,  Id.  223  ;  State  v.  Harlowe,  21  Mo.  446  ;  Commonwealth  v.  Hawkins, 
3  Gray,  463;  Mercer  v.  State,  17  Ga.  146;  Carter  v.  State,  12  Tex.  500;  People  v, 
Willey,  2  Parker,  C.  R.  19. 

Drunkenness  is  not  an  excuse  for  crime,  unless  such  drunkenness  was  occai;ioned 
by  tlie  fraud,  artifice,  or  contrivance  of  another.  Nor  does  it  make  any  difference 
that  a  man  by  constitutional  infirmity,  or  by  accidental  injury  to  the  head  or  brain, 
is  more  liable  to  be  maddened  by  liquor  than  another  man.  Clioice  v.  State,  31  Ga. 
424.  See  generally,  Mclntyre  v.  People,  38  111.  514  ;  Kenny  v.  People,  31  N.  Y.  330 ; 
Shannahan  v.  Commonwealth,  8  Bush,  464 ;  People  v.  Lewis,  36  Cal.  531  ;  People  t'. 
Garbutt,  17  Mich.  9 ;  Freery  v.  People,  54  Barb.  319 ;  Roberts  v.  People,  19  Mich, 
401 ;  Real  i-.  People,  42  N.  Y.  270. 

Evidence  that  on  occasions  prior  to  that  of  the  commission  of  the  larceny  charged, 
the  prisoner  was  bereft  of  his  reason  when  intoxicated,  held  inadmissible  to  disprove 
the  aiiimvii  farandi.     State  v.  Hart,  29  la.  268. 

Wliether  a  person  found  drunk  in  the  house  of  another  was  in  a  condition  to  have 
committed  burglary,  is  for  tlie  jury.     State  v.  Bell,  29  la.  316. 

If  a  man  is  insane  when  sober,  the  fact  tliat  he  increased  the  insanity  by  the  super- 
added excitement  of  liquor,  does  not  thereby  make  him  responsible  for  his  acts  when 
in  that  condition.     Choice  r.  State,  31  (ia.  424. 

Where  the  defendant's  mind  is  so  far  destroyed  by  a  long  continued  habit  of  drunk- 
enness, as  to  render  him  mentally  incompetent,  intentionally  and  knowingly  to  com- 
mit a  larceny,  lie  should  be  acquitted,  altliough  he  w;us  intoxicated  at  the  time  he 
took  the  propertv.  Bailey  v.  State,  26  Ind.  422.  And  see  Bradley  v.  State,  31  Ind, 
492;  State  v.  Handley,  46  Mo.  414. 

United  States  v.  Drew,  5  Mason,  28  ;  3  Am.  .Tur.  5 ;  Burnett  v.  State,  M.  &  Y.  133 ; 
Corawell  V.  State,  Id.  147;  State  v.  McCants,  1  Spears,  384. 

Long-continued  inebriety,  although  resulting  in  occasional  insanity,  does  not 
require  proof  of  a  lucid  interval  to  give  validity  to  the  acts  of  the  drimkard,  as  is 
required  when  general  insanity  is  proved.  When  the  indulgence  lias  produced 
general  derangement  of  mind,  it  would  be  otherwise.  Gardiner  v.  Gardiner,  22 
Wend.  526. 

In  a  case  of  murder,  the  prisoner's  intoxication  is  not  such  an  excuse  as  will  allow 
a  less  than  ordinarily  aflequate  provocation  to  palliate  the  offence,  unless  it  was  so 
great  as  to  render  him  unable  to  form  a  wilful,  deliberate,  and  premeditated  design  to 
kill,  or  incapable  of  judging  of  his  acts  and  tlieir  legitimate  consequences.  Keenan  v. 
Commonwealth,  44  Pa.  St.  55. 

Although  drunkenness  is  not  an  excuse  for  crime,  the  condition  of  the  accused 


Insanity.  1241 

R.  V.  Grindley,  1  Riiss.  Cri.115,  5th  od.;  but  see  the  note  (r)  apponded 
to  tho  ease.  And  where  the  prisoner  was  tried  for  attempting  to 
commit  suicide,  and  it  appeared  that  at  the  time  of  tlie  alleged 
offence  she  was  so  drunk  that  she  did  not  know  Avhat  she  did,  Jervis, 
C.  J.,  held  that  negatived  the  attemj)t  to  commit  suicide.  R.  v. 
Moore,  3  C.  &  K.  319,  and  the  case  cited,  ante,  p.  782. 

As  to  the  disposal  of  persons  found  to  be  insane  at  the  time  of  the 
offence  committed,  se(}  ante,  p.  230. 

The  mode  of  arraignment  and  trial  of  such  persons  has  also  been 
stated,  ante,  p.  199. 

caused  by  drunkenness,  may  be  taken  into  consideration  by  the  jury,  witli  the  other 
facts  of  the  case,  to  enable  them  to  decide  in  respect  to  the  question  of  intent.  Peo- 
ple v.  Harris,  29  Cal.  678. 

An  instruction  "  that  drunkenness  can  never  be  received  as  a  ground  to  excuse  or 
palliate  a  crime,"  is  erroneous,  as  it  may  depend  on  its  motive,  its  degree,  and  its 
effect  on  the  mind.  Golliher  v-  Commonwealth,  2  Duv.  163;  State  v.  Schingen,  20 
Wis.  74;  State  r.  Garvey,  11  Minn.  154. 

In  the  trial  of  a  person  indicted  for  murder,  the  jury  should  take  into  consideration 
evidence  of  the  intoxication  of  the  defendant  at  the  time  he  committed  the  offence, 
in  determining  the  degree  of  murder.  People  r.  King,  27  Cal.  507  ;  Smith  v.  Com- 
monwealtli,  1  Duv.  224.  And  see  Lanergan  v.  People,  50  Barb.  266 ;  Curry  v.  Com- 
monwealth, 2  Bush,  67;  O'Brien  r.  People,  48  Barb.  274;  Commonwealth  v.  Hart,  2 
Brewst.  546 ;  Kriel  v.  Commonwealth,  5  Bush,  362  ;  People  v.  Belencia,  21  Cal.  544 ; 
State  V.  Cross,  27  Mo.  332;  Golden  v.  State,  25  Georgia,  527;  Jones  ?'.  State,  29  Id. 
594 ;  Mooney  v.  State,  33  Ala.  419  ;  O'Herrin  v.  State,  14  Ind.  420 ;  Dawson  v.  State, 
16  Ind.  428. 

As  to  the  cases  of  delirium  tremens,  see  State  v.  Sewall,  3  Jones's  Lnw,  245 ;  Peo- 
ple V.  McCann,  3  Park.  C.  K.  272 ;  Macconehey  v.  State,  5  O.  St.  77.    S. 


1242  COERCION   BY  HUSBAiTD 


♦1010]  *COERCION  BY  HUSBAND. 

In  certain  cases  a  married  woman  is  privileged  from  punishment, 
upon  the  ground  of  the  actual  or  presumed  command  and  coercion  of 
her  husband  compelling  her  to  the  commission  of  the  olfcnce.  But 
this  is  only  a  presumption  of  law,  and  if  it  appears  upon  the  evidence 
that  she  did  not  in  fact  commit  the  oli(3nce  mider  compulsion,  but  was 
lierself  a  principal  actor  and  inciter  in  it,  she  must  be  found  guilty.  1 
Hale,  P.  C.  516.  In  one  case  it  appears  to  have  been  held  by  all  the 
judges,  upon  an  indictment  against  a  married  woman  for  falsely 
swearing  herself  to  be  next  of  kin,  and  procuring  administration, 
that  she  was  guilty  of  the  offence,  though  her  husband  was  with  her 
when  she  took  the  oath.  R.  v.  Dick,  1  Russ.  on  Cri.  5th  cd.,  141.  Upon 
an  indictment  against  a  man  and  his  wife  for  putting  off  forged  notes, 
where  it  appeared  that  they  went  together  to  a  public  house  to  meet 
the  person  to  whom  the  notes  were  to  be  put  off,  and  that  the  woman 
had  some  of  them  in  her  pocket,  she  was  held  entitled  to  an  acquittal. 
K.  V.  Atkinson,  1  Russ.  Cri.  153,  154,  5th  ed. 

Evidence  of  reputation  and  cohabitation  is  in  these  cases  sufficient 
evidence  of  marriage.  Id.  But  where  the  woman  is  not  described 
in  the  indictment  as  the  wife  of  the  man,  the  onus  of  proving  that 
she  is  so  rests  upon  her.  R.  v.  Jones,  Ivel.  37  ;  1  Russ.  Cri.  153, 
5th  ed. 

But  where  on  the  trial  of  a  man  and  woman  it  appeared  by  the 
evidence  that  they  addressed  each  other  as  husband  and  wife,  and 
passed  as  such,  and  were  so  spoken  of  by  the  witnesses  for  the  pros- 
ecution, Patteson,  J.,  held  that  it  was  for  the  jury  to  say  whether 
they  were  satisfied  that  they  were  in  fact  husband  and  wife,  even 
though  the  woman  had  pleaded  to  the  indictment,  wiiich  described 
her  as  a  "  single  woman."  R.  v.  Woodward,  8  C.  &  P.  561,  34  E. 
C.  L.  See  also  R.  v.  Good,  1  C.  &  K.  185,  47  E.  C.  L.;  R.  v.  Tor- 
pey,  12  Cox,  C.  C.  45,  infra. 

The  presumption  of  coercion  on  the  part  of  the  husband  does  not 
arise,  unless  it  appear  that  he  was  ]3resent  at  the  time  of  the  offence 
committed.  1  Hale,  P.  C.  45.  Thus  where  a  wife  by  her  husband's 
order  and  procurement,  but  in  his  absence,  knowingly  uttered  a  forged 
order  and  certificate  for  the  payment  of  prize-money,  all  the  judges 
held,  that  the  presumption  of  coercion  at  the  time  of  uttering  did 
not  arise,  and  that  the  wife  was  properly  convicted  of  uttering,  and 
the  husband  of  procuring.     R.  v.  Morris,  Russ.  &  Ry.  270. 

So  where  the  husband  delivered  a  threatening  letter  ignorantly,  as 
the  agent  of  the  wife,  she  alone  was  held  to  be  punishable.  R.  v. 
Hammond,  1  Leach,  447. 

The  prisoner,  Martha  Hughes,  Avas  indicted  for  forging  and  utter- 


COERCION   BY   HUSBAND.  1243 

ing  Bank  of  EnglniKl  notes.  The  Avitnoss  stated  tliat  he  went  to  the 
shop  of  the  prisoner's  liiisband,  where  she  took  him  into  an  inner 
room  and  sokl  him  the  notes  ;  that  while  he  was  putting  them  into 
his  pocket  the  husband  put  his  liead  in  and  said,  "Get  on  with  you." 
*On  returning  to  the  shop  lie  saw  the  husband,  who,  as  well  r:^,-lf^-^■l 
as  the  wife,  desired  him  to  be  earefid.  It  was  objected,  that  L 
the  offence  was  committed  under  coercion,  but  Thompson,  J>,,  thought 
otherwise.  He  said,  the  law,  out  of  tenderness  to  the  wife,  if  a  felony 
be  comaiittcd  in  the  presence  of  her  husband,  raises  a  presumption, 
primd  facie,  aud primd  facie  only,  as  is  clearly  laid  down  by  I^ord  Hale, 
that  it  was  done  under  his  coercion  ;  but  it  was  absolutely  necessary 
in  such  ca,se  that  the  husband  should  be  actually  present,  and  taking 
a  part  in  the  transaction.  Here  it  is  entirely  the  act  of  the  wife; 
it  is,  indeed,  in  consequence  of  a  previous  eomraunication  with  the 
husband  that  the  witness  applies  to  the  wife  ;  but  she  is  ready  to 
deal,  and  has  on  her  person  the  articles  which  she  delivers  to  the 
witness.  There  Avas  a  putting  oif  before  the  husband  came,  and  it  is 
sufficient  if,  before  that  time,  she  did  that  Avhich  Avas  necessary  to 
complete  the  crime.  The  coercion  must  be  at  the  time  of  the  act 
done ;  but  when  the  crime  has  been  completed  in  his  absence,  no 
subsequent  act  of  his  (though  it  might  possibly  make  him  an  ac- 
cessory '  to  the  felony  of  the  wife),  can  be  referred  to  what  Avas  done 
in  his  absence.  R.  v.  Hughes,  1  Russ.  Cri.  147,  5th  ed.;  2  LcAvin, 
C.  C.  229.  But  Avhere  on  an  indictment  against  a  Avoman  for  uttering 
counterfeit  coin  it  appeared  that  the  husband  accompanied  her  each 
time  to  the  door  of  the  shop,  but  did  not  go  in,  Bayley,  J.,  thought 
it  a  case  of  coercion.  R.  v.  Conolly,  2  LcAAan,  C.  C.  229 ;  Anon. 
Math.  Dig.  C.  L.  262. 

Where  husband  and  Avife  Avere  convicted  on  a  joint  indictment  for 
receiving  stolen  goods,  it  \A'as  held,  that  the  couA'iction  of  the  Avife 
AA'as  bad,  as  there  Avas  nothing  to  show  that  the  Avife  received  the 
goods  in  the  absence  of  her  husband.  R.  v.  Archer,  1  Moo.  C.  C.  143, 
ante,  p.  916  ;  R.  v.  MatthcAvs,  1  Den.  C.  C.  R.  596.  And  Avhere  stolen 
goods  are  found  in  a  man's  house,  and  his  Avife  in  his  presence  makes 
a  statement  exonerating  him  and  criminating  herself,  it  appears  that 
Avith  respect  to  the  admissibility  of  this  statement  against  her  the 
doctrine  of  presumed  coercion  may  apply,  R.  v.  Laugher,  2  C.  &  K. 
225,  61  E.  C.  L.  And  see  R.  v.  Brookes,  1  Dears,  C.  C.  R.  184, 
ante,  p.  917;  R.  v.  Wardroper,  ante,  p.  917. 

There  are  various  crimes,  from  the  punishment  of  Avhich  the  wife 
shall  not  be  priA'ileged  on  the  ground  of  coercion,  such  as  those  Avhich 
are  mala  in  se,  as  treason  and  murder.  1  Hale,  P.  C.  44,  45  ;  R.  v. 
Mannim;,  2  C.  &  K.  903,  61  E.  C.  L.  "  Some  of  the  books  also  ex- 
cept robbery."  Per  Patteson,  J.,  R.  v.  Cruse,  8  C.  &  P.  545,  34  E. 
C.  L.;  2  jNIoo.  C.  C.  54  ;  but  see  R.  v.  Torpey,  infra.  The  learned 
judge  afterAA'ards  said,  "  It  may  be,  that  in  cases  of  felony,  committed 
with  A'iolence,  the  doctrine  of  coercion  does  not  apply."  In  the  above 
case,  Avhere  a  husband  and  Avife  Avere  indicted  under  the  repealed  stat- 
ute 7  Will.  4  &  1  Vict.  c.  85,  s.  2,  for  the  capital  offence  of  inflicting 


1244  COERCION   BY   HUSBAND. 

an  injury  dangerous  to  life:  Patteson,  J.,  seemed  of  opinion,  tliat  as 
the  wife  took  an  active  })art  in  the  transaction,  she  might  be  found 
guilty  of  tiie  offence  with  the  husband,  but  said  he  would  reserve  the 
point,  if  upon  further  consideration  ho  thought  it  necessary.  The 
prisoners,  however,  were  accpiitted  of  the  felony  and  convicted  of  an 
assault.  See  also  R.  v.  Buncombe,  1  Cox,  C.  C.  113,  where  Coleridge, 
J.,  expressed  his  intention,  if  the  prisoner  were  convicted,  of  reserving 
this  point  for  the  consideration  of  the  judges. 

And  in  offences  relating  to  domestic  matters  and  the  government 
of  the  house,  in  which  the  wife  may  be  supposed  to  have  a  principal 
*i  ni  01  *'^hare,  the  rule  with  regard  to  coercion  docs  not  exist,  as  upon 
J  an  indictment  for  keeping  a  disorderly  house,  or  gaming-house. 
Hawk.  P.  C.  b.  1,  c.  1,  s.  12,  ante,  p.  823.  K.  v.  Dixon,  10  Mod. 
33G. 

And  the  prevailing  opinion  is  said  to  be,  that  the  wife  may  be 
found  guilty  with  the  husband  in  all  misdemeanors.  Arch.  C.  L. 
17,  10th  ed.;  4  Bl.  Com.  by  Ryland,  29  («) ;  R.  v.  Ingram,  1 
Salk.  384. 

But  where  a  husband  and  wife  were  jointly  indicted  for  a  misde- 
meanor in  uttering  counterfeit  coin,  and  it  appeared  that  the  wife 
uttered  the  base  money  in  the  presence  of  her  husband ;  Mirehouse, 
C.  S.  (after  consulting  Bosanquet,  and  Coltman,  JJ.),  held  that  she 
was  entitled  to  an  acquittal.  R.  v.  Price,  8  C.  &  P.  19,  34  E.  C.  L.; 
and  see  R.  v.  Conolly,  ante,  p.  1011,  which  Avas  also  a  case  of  misde- 
meanor ;  see  also  8  C.  &  P.  21  n.  {b),  34  E.  C.  L. 

However,  in  R.  v.  Cruse,  ante,  p.  1011,  where  the  jury  convicted  a 
husband  and  Avife  of  an  assault,  under  the  repealed  statute  7  Will.  4 
&  1  Vict.  c.  85,  s.  11,  the  judges,  on  a  case  reserved,  affirmed  the 
conviction,  being  unanimously  of  opinion,  that  the  point  with  respect 
to  the  coercion  of  the  wife  did  not  arise,  as  the  ultimate  result  of  the 
case  was  a  conviction  for  misdemeanor.  The  contrary  has,  however, 
been  ruled  by  Russell  Gurney,  Recorder,  after  consulting  Bramwell, 
B.     R.  V.  Torpcy,  12  Cox,  C.  C.  45. 

Where  the  wife  is  to  be  considered  as  merely  the  servant  of  her 
husband,  she  will  not  be  answerable  for  the  consequences  of  his 
breach  of  duty,  however  fatal,  though  she  may  be  privy  to  his  con- 
duct. Thus  where  the  husband  and  wife  \vere  indicted  for  the 
murder  of  an  apprentice  of  the  husband,  who  had  died  for  want  of 
proper  nourishment,  Lawrence,  J.,  held  that  the  wife  could  not  be 
convicted;  for,  though  equally  guilty  inforo  conscieniice.,  yet,  in  point 
of  law,  she  could  not  be  guilty  of  not  providing  the  apprentice  with 
sufficient  food.  R.  v.  Squire,  1  Russ.  Cri.  145,  5th  ed.;  see  further, 
ante,  p.  764. 

A  woman  cannot  be  indicted  as  an  accessory  by  rescuing  her  hus- 
band. 1  Hale,  P.  C.  47.  Nor  could  she  be  guilty  of  larceny  in  steal- 
ing her  husband's  goods.  1  Hale,  P.  C.  514,  ante,  p.  681.  But  if 
she  and  a  stranger  stole  the  goods,  the  stranger  Avas  liable.  R.  v.  Tol- 
free,  1  Moo.  C.  C.  243  ;  see  further,  ante,  p.  681.  So  it  has  been  held 
that  she  was  not  guilty  of  arson  within  the  7  &  8  Geo.  4,  c.  30,  s.  2, 


COERCION   BY   HUSBAND.  1245 

(repealed),  by  setting  her  husband's  house  on  fire.     E.  v.  Marsh,  1 
Moo.  C.  C.  182,  «n^e,  p.  298. 

But  as  has  been  already  seen,  a  wife  can  now  (sees.  Jb  ot  tlie 
Married  Women's  Property  Act,  1882  ;  45  &  46  Vict.  c.  75)  be  con- 
victed of  stealing  her  husband's  property ;  but  it  seems  that  she  could 
not  be  convietedi  of  arson,  forgery,  and  other  offences  with  respect  to 
his  property. 


APPENDIX. 


14  &  15  VICT.  c.  100. 

AN   ACT   FOR   FURTHER    IMPROVING    THE    ADMINISTRATION  [7th  Aug- 
ust, 1851.1 
OF   CRIMINAL   JUSTICE.  '         ^ 

Whereas  offenders  frequently  escape  conviction  on  their 
trials  by  reason  of  the  technical  strictness  of  criminal  pro- 
ceedings in  matters  not  material  to  the  merits  of  the  case  ; 
and  whereas  such  technical  strictness  may  safely  be  relaxed 
in  many  instances,  so  as  to  insure  the  punishment  of  the 
guilty,  without  depriving  the  accused  of  any  just  means  of 
defence ;  and  whereas  a  failure  of  justice  often  takes  place 
on  the  trial  of  persons  charged  with  felony  and  misdemeanor, 
by  reason  of  variances  between  the  statement  in  the  indict- 
ment on  which  the  trial  is  had  and  the  proof  of  names, 
dates,  matters,  and  circumstances  therein  mentioned,  not 
material  to  the  merits  of  the  case,  and  by  the  misstatement 
whereof  the  person  on  trial  cannot  have  been  prejudiced  in 
his  defence :  Be  it  therefore  enacted  by  the  Queen's  most 
excellent  Majesty,  by  and  with  the  advice  and  consent  of 
the  Lords  spiritual  and  temporal,  and  Commons,  in  this 
present  Parliament  assembled,  and  by  the  authority  of  the 
same,  as  follows  : 

I.  From  and  after  the  coming  of  this  Act  into  operation.  The  court 
whenever  on  the  trial  of  any  indictment  for  any  felony  or™^fat™*'"^ 
misdemeanor  there  shall  appear  to  be  anv  variance  between  variances 

1  •  1       •  T  1     "i  •  1  no        ^  "°^    mater- 

the   statement  in  such   indictment  and  the  evidence  oitered  iai  to  the 
in  proof  thereof,  in  the  name  of  any  county,  riding,  division,  the'^case, 
city,  borough,  town   corporate,    parish,   township,    or   place  f^",'^ch^the 
mentioned  or  described    in  anv   such  indictment,  or  in  the '^'^'^^"'l'^"* 

,      .  -  '  cannot  be 

name    or   description    01    any    person    or   persons,  or    body  prejudiced 
politic   or   corporate,   therein    stated   or  alleged   to    be   the  fence,  and 
owner  or  owners  of  any  property,  real  or  personal,  Avhicli  proceljd^^'^ 
shall  form  the  subject  of  any  offence  charged  therein,  or  in  ^^l^  ^^^ 
the    name   or   description    of   any    person    or  persons,  body  the  tnai  to 
politic  or  corporate,  therein    stated  or  alleged  to  be  injured  fore  the 
or  damaged,  or  intended  to  be  injured  or  damaged,  by  thean™fher 
commission   of   such   offence,  or   in  the  Christian  name   orJ'^'y- 
surname,  or   both  Christian    name    and   surname,  or   other 
description   whatsoever,  of  any   person   or  persons   whom- 
soever therein   named   or   described,   or    in    the    name    or 

1247 


1248  APPENDIX. 

*  1  m  4 1  *<lcscription  of  any  matter  or  thing  whatsoever  therein 
-I  named  or  described,  or  in  tlie  ownership  of  any  prop- 
erty named  or  described  therein,  it  shall  and  may  be  lawful 
for  the  court  before  which  the  trial  shall  be  had,  if  it  shall 
consider  such  variance  not  material  to  the  merits  of  the  case, 
and  that  the  defendant  cannot  be  prejudiced- thereby  in  his  de- 
fence on  such  merits,  to  order  such  indictment  to  be  amended 
according  to  the  proof,  by  some  officer  of  the  court  or  other 
person,  both  in  that  i)art  of  the  indictment  Avhere  such  vari- 
ance occurs  and  in  every  other  part  of  the  indictment  vrhich 
it  may  become  necessary  to  amend,  on  such  terms  as  to  post- 
poning the  trial  to  be  had  before  the  same  or  another  jury,  as 
such  court  shall  think  reasonable  :  and  after  any  such  amend- 
ment the  trial  shall  proceed,  whenever  the  same  shall  be  pro- 
ceeded with,  in  the  same  manner  in  all  respects,  and  with  the 
same  consequences,  both  with  respect  to  the  liability  of  wit- 
nesses to  be  indicted  for  perjury  and  otherwise,  as  if  no  such 
variance  had  occurred ;  and  in  case  such  trial  shall  be  had  at 
Nisi  Prius  the  order  for  the  amendment  shall  be  indorsed  on 
the  postea,  and  returned  together  with  the  record,  and  there- 
upon such  papers,  rolls,  or  other  records  of  the  court  from 
which  such  record  issued  as  it  may  be  necessary  to  amend  shall 
be  amended  accordingly  by  the  j^roper  officer,  and  in  all  other 
cases  the  order  for  the  amendment  shall  either  be  indorsed  on 
the  indictment  or  shall  be  engrossed  on  parchment,  and  filed, 
together  witli  the  indictment,  among  the  records  of  the  court : 
Provided  that,  in  all  such  cases  where  the  trial  shall  be  post- 
})oned  as  aforesaid,  it  shall  be  lawful  for  such  court  to  respite 
the  recognizances  of  the  prosecutor  and  witnesses,  and  of  the 
defendant,  and  his  surety  or  sureties,  if  any,  accordingly,  in 
which  case  the  prosecutor  and  witnesses  shall  be  bound  to  at- 
tend to  prosecute  and  give  evidence  respectively,  and  the  de- 
fendant shall  be  bound  to  attend  to  be  tried,  at  the  time  and 
place  to  which  such  trial  shall  be  postponed,  without  entering 
into  any  fresh  recognizances  for  that  ])urpose,  in  such  and  the 
same  manner  as  if  they  were  originally  bound  by  their  recog- 
nizances to  appear  and  prosecute  or  give  evidence  at  the  time 
and  ])lace  to  which  such  trial  shall  have  been  so  postponed : 
Provided  also,  that  where  any  such  trial  shall  be  to  be  had 
before  another  jury,  thecrown  and  the  defendant  shall  respect- 
ively be  entitled  to  the  same  challenges  as  they  were  respect- 
ively entitled  to  before  the  first  jury  was  sworm. 
and'^iud^-  ^^'  Evcry  verdict  and  judgment  which  shall  be  given 
nienis  valid  after  the  making  of  any  amendment  under  the  provisions 
amend-  of  tliis  Act  shall  be  of  the  same  force  and  effect  in  all 
ments.  respects  as  if  the  indictment  had  originally  been  in  the 
same  form  in  which  it  was  after  such  amendment  was 
made. 

III.  If  it  shall  become  necessary   at  any   time    for   any 


APPENDIX.  1249 

puqjose  whatsoever  to  draw  up  a  formal  record  in  any  case  Records  to 
where    any    amendment    shall    have    been    made    nnder   the  up  hi**" ° 
provisions  of  this  Act,  such  record  shall  be  drawn  up   in  the  fom^^^yfdj. 
form   in  which  the  indictment  was,   after    such    amendment  9"' "o"c- 
*was  made,  without  takniy;  anv  notice  oi  the  fact  ot   r-kim  c  *'"'*-'"<i- 
such  amendment  liaving  been  made.  l 

IV.  Repealed  by  the  24  c&  25  Vict.  c.  95. 

V.  In  any  indictment    for    [forging,  uttering],  stealing,  Forms  of 
embezzling,   destroying,  or  concealing,  or  for  obtaining  by  jn'^.'as™ o"* 
false  pretences  any  instrument,   it  shall  be  sufficient  to  de-  [ute^mg*^"** 
scribe  such  instrument  by  any  name  or  desis^-nation  by  which  steniins^' 
the  same  may  be  usually  known,  or  by  the  purport  thereof,  ziing or 
without  setting  out  any  copy  or  fac-simile  thereof,  or  other- by'faise"^ 
wise  describing  the  same  or  the  value  thereof.     This  section  pretences, 
is  repealed  as  to  forging  and  uttering  by  the  24  &  25  Vict.  c. 

95. 

VI.  Repealed  by  the  24  &  25  Vict.  c.  95. 

VII.  In  all  other  cases  wherever  it  sliall  be  necessary  to  in  other 
make  any  averment  in  any  indictment  as  to  any  instrument, 
whether   the   same   consists    wholly  or   in  part  in   writing, 
print,   or    figures,    it   shall    be    sufficient   to    describe   such 
instrument  by  any  name  or  designation   by  which   the  same 

may  be  usually  known,  or  by  the  purport  thereof,  without 
setting  out  any  copy  or  fac-simile  of  the  whole  or  any  part 
thereof. 

VIII.  Repealed  by  the  24  &  25  Vict.  c.  95. 

IX.  This  section  is  set  out  p.  82,  ante,  and  relates  to 
convictions  for  attempts,  upon  indictments  for  felony  or 
misdemeanor. 

X.  Section  10  merely  repeals  the  11th  section  of  7  Will. 
4  &  1  Vict.  c.  85,  and  is  eliminated  in  the  new  edition.  See 
p.  82. 

XI.  Repealed  by  the  24  &  25  Vict.  c.  95. 

XII.  By  this  section,  which  is  set  out  p.  82,  persons  tried 
for  misdemeanor  are  not  to  be  accpiitted  if  the  offi^nce  turn 
out  to  be  felonv. 

XIIL,  XIV.,  XV.,  XVI.,  XVII.,  repealed  by  the  24  & 
25  Vict.  c.  95. 

XVIII.  In  every  indictment  in  which  it  shall  be  neces-  coin  and 

,  1  ,  ,  ,         ^bank  notes 

saiy  to  make  any  averment  as  to  any  money  or  any  note  of  may  i>e  de- 
the  Bank  of  England,  or  any  other  bank,  it  shall  be  sufficient  gf^pf^'^as 
to    describe   such   money   or   bank-note   simply   as  money,  ^oney. 
without  specifying  any  particular  coin  or  bank-note ;  and 
such   allegation,   so   far   as   regards   the  description  of   the 
property,  shall  be  sustained  by  proof  of  any  amount  of  coin 
or  of  any  bank-note,  although  the  particular  species  of  coin 
of    which    sucli   amount   was    composed,    or   the   particular 
nature   of   the    bank-note,    shall    not   be    proved,   and    in 
cases    of    embezzlement  and    obtaining    money   or    bank- 
79 


1250  APPEXDIX. 

notes  by  false   pretences,  by   proof   that   the   offender   em- 
bezzled   or    obtained    any    piece  of  coin    or   any    bank-note, 
or  any  portion   of   the   valne  thereof,    althongh   snch   piece 
of    coin    or    bank-note    may    have    been    delivered    to    him 
in   order   tiiat   some  part  of   the  value  thereof   should  be 
returned  to  the  party  delivering  the  same,  or  to  any  other 
person,   and   such   part   shall   have   been   returned   accord- 
ingly, 
certainpro-      XIX.  Whereas  by  an  Act  of  Parliament  passed  in  Eng- 
23G°ea2,     land  iu  the   twenty-third   year    of    the    reign  of    his  late 
31  Gec?:'^)    *i  01  n    *Majesty  King  George  the  Second,  intituled  "  An  Act 
^^^^^  -*   to  render  Prosecutions  for  Perjury  and   Subornation 

of  Perjury  more  easy  and  effectual ;"  and  by  a  certain  other 
Act  of  Parliament  made  in  Ireland  in  the  thirty-first  year  of 
the  reign  of  his  late  Majesty  King  George  the  Third,  in- 
tituled "  An   Act   to   render  Prosecutions  for  Perjury  and 
Subornation  of   Perjury   more  easy  and  effectual,  and  for 
affirming  the   Jurisdiction  of  the  Quarter  Sessions  in  cases 
of  Perjury,"  certain  provisions  were  made  to  prevent  per- 
sons  guilty   of   perjury    and    subornation    of   perjury  from 
escaping  punishment  by  reason  of  the  difficulties  attending 
Any  court,  sucli   prosccutions ;    and   whereas  it  is  expedient  to  amend 
ticcfwc^"^  and  extend  the  same :  Be  it  enacted,  that  it  shall  and  may 
a^persd^f^^  be  lawful  for  the  judges  or  judge  of   any  of  the  superior 
guilty  of     courts  of  commou  law  or  equity,  or  for  any  of  her  Majesty's 

perjury  m    ...  .     .  /•'.'..         V  i     , 

anyevi-     justiccs  or  Commissioners  ot  assize,  nisi  prius,  oyer  and  ter- 
to  be%1w-"  miner,  or   gaol  delivery,  or  for   any  justices    of  the  peace, 
ecuted,       recorder    or    deputy-recorder,    chairman,     or    other    judge 
holding  any  general  or  quarter  sessions  of  the  peace,  or  for 
any  commissioner  of  bankruptcy  or  insolvency,  or  for  any 
judge  or  deputy-judge  of  any  county  court  or  any  court  of 
record,  or  for  any  justices  of  the  peace  in  special  or  petty 
sessions,  or  for  any  sheriff  or  his  lawful  deputy  before  whom 
any  writ  of  inquiry  or  writ  of  trial  from  any  of  the  sujierior 
courts  shall  be  executed,  in  case  it  shall  appear  to  him  or 
them  that  any  person  has  been  guilty  of  wilful  and  corrupt 
perjury  in  any  evidence  given,  or  in  any  affidavit,  depo- 
sition,   examination,   answer,   or  other  proceeding   made  or 
taken  before  him  or  them,  to  direct  such  person  to  be  pros- 
ecuted for  such  perjury,  in  case  there  shall  appear  to  hira 
or   them  a   reasonable   cause   for   such  prosecution,  and  to 
and  commit  commit  such  person  so  directed  to  be  prosecuted  until  the 
unless  he'    i^^xt  scssioii  of  oycr  and  terminer  or  gaol  delivery  for  the 
recogni'-^*'    couuty   or   other  district   within   which   such   perjury   was 
zance  to  ap- committed,    unless   such   person   shall  enter   into    a   recog- 
take  his      nizauce,  with  one  or  more  sufficient  surety  or  sureties,  con- 
bind  per-    ditioned  for  the   appearance  of  such   person   at   such   next 
^Menc^^^  session  of  oyer  and  terminer  or  gaol  delivery,  and  that  he 
will  then  surrender  and  take  his  trial,  and  not  depart  the 


APPENDIX.  1251 

court  without   leave,  and  to  require  any  person  lie  or  they 
may  think   fit   to  enter    into  a  recognizance,  conditioned  to 
prosecute  or  give  evidence  against  such  person  so  directed 
to  be  prosecuted  as  aforesaid,  and  to  give  to  the   party  so  and  (jive 
bound  to  prosecute  a  certificate  of  the  same  being  directed,  of  prosecu- 
which  certificate  shall  be  given   without  any  fee  or  charge,  ^'j°"J^gjj"^ 
and  'shall   be  deemed   sufficient  proof   of  such    prosecution  whichsiiau 
having  been  directed  as  aforesaid;  and  upon  the  production  dent  evi- 
thereof  the  costs  of  such  prosecution  shall,  and  are  hereby  fhe  same. 
required  to  be  allowed  by  the  court  before  which  any  person 
shall  be  prosecuted  or  tried  in  pursuance  of  such  direction 
as  aforesaid,  unless  such  last- mentioned  court  shall  specially 
otherwise  direct ;    and  when  allowed   by  any  such   court  in 
Ireland  such  sum  as  shall  be  so  allowed,  shall  be  ordered 
by  the  said  court  to  be  paid  to  the  prosecutor  by  the  treas- 
urer of  the  county  in  which  such  oifence  shall   be  alleged 
*to  have  been  committed,  and  the  same  shall  be  pre-   r^i^iy 
sented  for,  raised,  and  levied  in  the  same  manner  as   '- 
the  expenses  of  prosecutions  for  felonies  are  now  presented  for, 
raised  and  levied  in  Ireland  :  Provided  always,  that  no  such 
direction  or  certificate  shall  be  given  in  evidence  upon  any 
trial  to  be  had  against  any  person  upon  a  prosecution  so  di- 
rected as  aforesaid. 

XX.  In  every  indictment  for  perjury,  or  for  unlawfully,  Extending 
wilfully,    falsely,    fraudulently,   deceitfully,    maliciously,   or  2,  c."n.  Ti, 
corruptly  taking,  making,  signing,  or  subscribing  any  oath,  offen^ls 
affirmation,   declaration,   affidavit,   deposition,    bill,   answer,  a"^  simpii- 
notice,  certificate,  or  other  writing,  it  shall  be  sufficient  todictments 
set  forth  the  substance  of  the  oifence  charged  upon  the  de-  aiid^othe7' 
fendant,  and  by  what  court  or  before  whom  the  oath,  affir-^^^^®^'^^'^® 
mation,  declaration,  affidavit,  deposition,   bill,   answer,    no- 
tice,  certificate,  or   other  writing,  was  taken,   made,  signed, 

or  subscribed,  without  setting  forth  the  bill,  answer,  infor- 
mation, indictment,  declaration,  or  any  part  of  any  proceed- 
ing either  in  law  or  in  equity,  and  without  setting  forth  the 
commission  or  authority  of  the  court  or  person  before  whom 
such  offiiuce  was  committed. 

XXI.  In  every  indictment    for   subornation    of  perjury.  Extending 
or  for  corrupt  bargaining  or  contracting  with  any  person  to^^l~fi^\ 
commit  wilful  aud  corrupt  perjury,  or  for  inciting,  causing,  ^^^9  form  of 
or  procuring  any  person  unlawfully,  wilfully,  falsely,  fraud-  ments  for 
ulently,    deceitfully,    maliciously,    or    corruptly,    to    take,  tlon^' 
make,  sign,  or  subscribe  any  oath,  affirmation,  declaration,  ofheM^ke^ 
affidavit,  deposition,  bill,  answer,  notice,  certificate,  or  other  ofifence. 
writing,    it   shall    be   sufficient,  wherever    such    perjury    or 

other  offence  aforesaid  shall  have  been  actually  committed 
to  allege  the  offence  of  the  person  who  actually  committed 
such  perjury  or  other  offence  in  the  manner  hereinbefore 
mentioned,  and  then  to  allege  that  the  defendant  unlawfully, 


1252 


APPENDIX. 


What  de- 
fects shall 
not  vitiate 
an  indict- 
lueul. 


Repealing 
part  of 
60  Geo.  3, 
&  1  Geo.  4, 
C  4,  as  to 
ttie  traverse 
of  indict- 
ments in 
cases  of 
misde- 
meanor. 


wilfully,  and  corruptly  did  cause  and  procure  the  said  per- 
son the  said  offence,  in  manner  and  form  aforesaid,  to  do 
and  commit ;  and  wherever  such  perjury  or  otlier  oli'ence 
aforesaid  shall  not  have  been  actually  committed,  it  shall  be 
sufficient  to  set  forth  the  substance  of  the  offence  charged 
upon  the  defendant,  without  setting  forth  or  averring  any 
of  the  matters  or  things  hereinbefore  rendered  unnecessary  to 
be  set  forth  or  averred  in  the  case  of  wilful  and  corrupt  per- 
jury. ^  .  .  . 

XXII.  This  section,  which  provides  that  a  certificate 
of  trial  shall  be  evidence  of  such  trial,  is  set  out,  ante,  p. 
862. 

XXIII.  This  section,  which  is  set  out,  p.  248,  provides 
for  the  laying  of  the  venue. 

XXIV.  No  indictment  for  any  offence  shall  be  held  in- 
sufficient for  want  of  the  averment  of  any  matter  unnecessary 
to  be  proved,  nor  for  the  omission  of  the  M'ords  "  as  appears 
by  the  record,"  or  of  the  words  "  with  force  and  arms,"  or 
of  the  Avords  "against  the  peace,"  nor  for  the  insertion  of 
the  words  "  against  the  form  of  the  statute,"  instead  of 
"against  the  form  of  the  statutes,"  or  vice  versd,  nor  for  that 
any  person  mentioned  in  the  indictment  is  designated  by  a 
name  of  office  or  other  descriptive  a])pellation,  instead  of 
*1018"I    *^"^  proper  name,  nor  for  omitting  to  state  the  time 

-■  at  which  the  offence  Avas  committed  in  any  case  where 
time  is  not  of  the  essence  of  the  offence,  nor  for  stating  the  time 
imperfectly,  nor  for  stating  tlie  offence  to  have  been  committed 
on  a  day  subsequent  to  the  finding  of  the  indictment,  or  on 
an  impossible  day,  or  on  a  day  that  never  happened,  nor 
for  want  of  a  proper  or  perfect  venue,  nor  for  Avant  of  a 
proper  or  formal  conclusion,  nor  for  want  of  or  imperfec- 
tion in  the  addition  of  any  defendant,  nor  for  want  of  the 
statement  of  the  value  or  price  of  any  matter  or  thing,  or 
the  amount  of  damage,  injury,  or  spoil,  in  any  case  where 
the  value  or  price,  or  the  amount  of  damage,  injury,  or  spoil, 
is  not  of  the  essence  of  the  offence. 

XXV.  This  section,  which  is  set  out,  p.  208,  provides  for 
the  taking  of  objections  before  the  jury  are  sworn,  and  the 
amending  of  formal  defects  in  indictments. 

XXVI.  So  much  of  a  certain  Act  of  Parliament  passed 
in  the  sixtieth  year  of  the  reign  of  his  late  Majesty  King 
George  the  Third,  intituled  "  An  Act  to  jjrevent  delay  in 
the  Administration  of  Justice  in  cases  of  Misdemeanor," 
as  provides  that  "  where  any  person  shall  be  prosecuted 
for  any  nii.sdemeanor  by  indictment,  at  any  session  of  the 
peace,  session  of  oyer  and  terminer,  great  session,  or  ses- 
sion of  gac^  delivery,  within  that  part  of  Great  Britain 
called  England,  or  in  Ireland,  having  been  committed  to 
custody  or  hold  to  bail  to  appear  to  answer  for  such  offence. 


APPENDIX.  1253 

twenty  days  at  the  least  before  the  session  at  whicli  such 
indictment  shall  be  found,  he  or  she  shall  plead  to  such  in- 
dictment, and  trial  shall  proceed  thereon,  at  such  same 
session  of  the  peace,  session  of  oyer  and  terminer,  great 
session,  or  session  of  gaol  delivery  respectively,  unless  a 
writ  of  certiorari  ft)r  removing  such  indictment  into  his 
Majesty's  Court  of  King's  Bench  at  Westminster  or  in 
Dublin  shall  be  delivered  at  such  session  before  the  jury 
shall  be  sworn  for  such  trial,"  shall  be  and  the  same  is 
hereby  repealed. 

XXVII.  This  section,  which  is   set  out,  p.  200,  provides 
for  traversing  or  postponing  indictments. 

XXVIII.  In   any  ]ilea   of  autrefois  convict  or   autrefois  Provision 
acquit   it  shall  be  suflicieut  for  any  defendant  to  state  that  autrefofs^  ° 
he  has  been   lawfully  convicted  or  acquitted  (as  the  case  may  acquiu  "'^ 
be)  of  the  said  offence  charged  in  the  indictment. 

XXIX.  Whenever  any  person  shall   be  convicted  of  any  Punish- 
one  of  the  offences  following,  as  an   indictable  misdemeanor ;  certain"'" 
that   is  to  say,   any  cheat  or   fraud  punishable   at   common  J^^isde-"^^'^ 
law  ;  any  conspiracy  to  cheat  or  defraiftl,  or  to  extort  money  meauors. 
or  goods,   or  falsely  to  accuse  of  any  crime,  or  to  obstruct, 
prevent,  pervert,  or  defeat  the  course  of  public  justice  ;  any 
escape  or  rescue  from  lawful   custody  on  a  criminal  charge ; 

any  public  and  indecent  exposure  of  the  person  ;  [any  inde- 
cent assault,  or  any  assault  occasioning  actual  bodily  harm ; 
any  attempt  to  have  carnal  knowledge  of  a  girl  under  twelve 
years  of  age],  any  public  selling,  or  exposing  for  pul)lic 
sale  or  to  public  view,  of  any  obscene  book,  print,  picture, 
or  other  indecent  exhibition  ;  it  shall  be  lawful  for  the  court 
*to  sentence  the  offender  to  be  imprisoned  for  any  r^ijirv-jq 
term  now  warranted  l)y  law,  and  also  to  be  kept  to  L 
hard  labor  during  the  whole  or  any  part  of  such  term  of  im- 
prisonment. This  section  is  repealed  as  to  the  part  in  brackets, 
by  24  &  25 'Vict.  c.  95. 

XXX.  In  the  construction  of  this  Act  the  word  "  indict-  interpreta- 
ment "  should    be    understood    to    include    "  information,"  terms. 

"  inquisition,"  and  "  presentment,"  as  well  as  indictment, 
and  also  any  "  plea,"  "  replication,"  or  other  pleading,  and 
any  Nisi  Prius  record  ;  and  the  terms  "  finding  of  the  in- 
dictment "  shall  be  understood  to  include  "  the  taking  of  an 
inquisition,"  "  the  exhibiting  of  an  information,"  and  "  the 
making  a  presentment;"  and  whenever  in  this  Act,  in  de- 
scribing or  referring  to  any  person  or  party,  matter  or  thing,  . 
any  word  importing  the  singular  number  or  masculine 
gender  is  used,  the  same  shall  be  understood  to  include  and 
shall  be  applied  to  several  ])ersons  and  parties  as  well  as 
one  person  or  party,  and  females  as  well  as  males,  and  bodies 
corporate  as  well  as  individuals,  and  several  matters  and 
things  as  well  as  one  matter  or  thing ;  and  the  word  "  prop- 


1254 


APPENDIX. 


Com- 
meiice- 
nieiit  of 
Act. 

Not  to  ex- 
tend to 
Scotland. 


erty  "  shall  be  understood  to  include  goods,  chattels,  money, 
valuable  securities,  and  every  other  matter  or  thing,  whether 
real  or  personal,  upon  or  with  respect  to  which  any  offence 
may  be  committed. 

XXXI.  This  Act  shall  come  into  operation  on  the  first 
day  of  September,  one  thousand  eight  hundred  and  fifty- 
one. 

XXXII.  Nothiuff  in  this  Act  shall  extend  to  Scotland. 


22  &  23  yiCT.  c.  17. 

AN   ACT   TO   PREVENT   VEXATIOUS   INDICTMENTS   FOR 
CERTAIN    MISDEMEANORS. 


No  indict-* 
ment  for 
often  ces 
herein 
named  to 
be  prefer- 
red without 
previous 
authoriza- 
tion. 


Be  it  enacted  by  the  Queen's  most  excellent  Majesty,  by 
and  with  the  advice  and  consent  of  the  Lords  spiritual  and 
temporal,  and  Commons,  in  this  present  Parliament  assembled, 
and  by  the  authority  of  the  same,  as  follows  : 

1.  After  the  first  day  of  September,  one  thousand  eight 
hundred  and  fifty-nine,  no  bill  of  indictment  for  any  of  the 
oifences  following ;  viz. : 

Perjury,  _ 

Subornation  of  perjury, 

Conspiracy, 

Obtaining  money  or  other  property  by  false  pretence, 

Keeping  a  gambling  house. 

Keeping  a  disorderly  house,  and 

Any  indecent  assault, 
shall  be  presented  to  or  found  "by  any  grand  jury,  unless  the 
prosecutor  or  other  person  presenting  such  indictment  has  been 
bound  by  recognizance  to  prosecute  or  give  evidence  against 
the  person  accused  of  such  offence,  or  unless  the  person  ac- 
cused has  been  committed  to  or  detained  in  custody,  or  has 
*10201  ^^^"  bound  by  recognizance  to  appear  to  *ansM'er  to 
-■  an  indictment  to  be  preferred  against  him  for  such 
offence,  or  unless  such  indictment  for  such  offence,  if  charged 
to  have  been  committed  in  England,  be  preferred  by  the  di- 
rection or  with  the  consent  in  writino;  of  a  Judg-e  of  one  of 
the  superior  courts  of  law  at  Westminster,  or  of  her  Majesty's 
Attorney-General  or  Solicitor- General  for  England,  or  unless 
such  indictment  for  such  offence,  if  charged  to  have  been 
committed  in  Ireland,  be  preferred  by  the  direction  or  with 
the  consent  in  writing  of  a  Judge  of  one  of  the  superior 
courts  of  law  in  Dublin,  or  of  her  Majesty's  Attorney-Gen- 
eral or  Solicitor-General  for  Ireland,  or  (in  the  case  of  an  in- 
dictment for  perjury)  by  the  direction  of  any  court,  judge,  or 
public  functionary  authorized  by  an  Act  of  the  Session  holden 


APPENDIX.  1255 

in  the  fourteenth  and  fifteenth  years  of  her  Majesty,  chapter  i4&i5Vict. 
cue  huuflred,  to  direct  a  prosecution  for  perjury. 

2.  That    where   any  charge    or  complaint  shall  be  made  i" ''ertain 

r>i-tr'  >••  />!  cases  where 

beiorc  any  one  or  more  oi  her  Maiesty  s  lustices  oi  the  peace  prosecutor 
that  any  person  has  committed  any  of  the  otlcnces  aforesaid  prefer  an 
•within  the  jurisdiction  of  such  justice,  and  such  justice  shall  jysike^tT* 
refuse  to  commit  or  to  bail  the  person  charged  with  such  of-^'^^e  ws 
fence  to  be  tried   for  the  same,  then   in  case  the  prosecutor  zan<e to 
shall  desire  to  prefer  an  indictment  respecting  the  said  oftence,  ^^"^  ^ 
it  shall  be  lawful  for  the  said  justice  and  he  is  hereby  required 
to  take  the  recognizance  of  such  prosecutor  to  prosecute  the 
said  charge  or  complaint,  and  to  transmit  such  recognizance, 
information,  and  depositions,  if  any,  to  the  court  in  which 
such  indictment  ought  to  be  preferred,  in  the  same  manner  as 
such  justice  would  have  done  in  case  he  had  committed  the 
person  charged  to  be  tried  for  such  offence. 

3.  This  Act  shall  not  extend  to  Scotland.  Act  not  to 

extend  to 
Scotland. 


30  &  31  VICT.  c.  35. 

AN  ACT   TO   REMOVE   SOME   DEFECTS    IX   THE    ADMINISTRA- 
TION OF   THE   CRIMINAL   LAW, 

Whereas  it  is  found  that  delay  and  inconvenience  are  fre-  r20th  June, 
quently  caused  by  the  provisions  contained  in  the  first  section  ^*'^''^ 
of  the  Act  22  &  23  Vict.  c.  17,  in  cases  not  within  the  mis- 
chief for  remedy  whereof  the  same  act  was  made  and  passed, 
and  it  is  expedient  to  restrict  the  operation  thereof:  be  it  en- 
acted by  the  Queen's  most  excellent  Majesty,  by  and  with  the 
advice  and  consent  of  the  Lords  spiritual  and  temporal,  atid 
Commons,  in  this  present  Parliament  assembled,  and  by  the 
authority  of  the  same  : 

1.  That  the  said  provisions  of  the  said  first  section  of  the  Limitation^ 
said  Act  shall  not  extend  or  be  applicable  to  prevent  the  vict.'^c.l?.' 
pi-esentmeut  to  or  finding  by  a  grand  jury  of  any  bill  of 
indictment   containing   a    count    or    counts    for   any    of  the 
offences  mentioned  in  the  said   Act,  if  such    count  or  counts 
be  such  as  may  now  be  lawfully  joined  with  the  rest  of  such 
*bill  of  indictment,  and  if  the  same  count  or  counts    r^-i/^Q-i 
be  founded  (in  the  opinion  of  the  court  in  or  before   ^ 
which  the  same  bill  of  indictment  be  preferred)  upon  the  facts 
or  evidence  disclosed  in  any  examinations  or  depositions  taken 
before  a  justice  of  the  peace,  in  the  presence  of  the  person  ac- 
cused or  proposed  to  be  accused  by  such   bill  of  indictment, 
and  transmitted  or  delivered  to  such  court  in  due  course  of  law ; 
and  nothing  in  the  said   Act  shall  extend  or  be  applicable  to 
prevent  the  presentment  to  or  finding  by  a  grand  jury  of  any 


1256  APPENDIX. 

bill  of  indictment,  if  such  bill  be  presented  to  the  grand  jury 
with  the  consent  of  the  court  in  or  before  which  the  same  may 
be  preferred. 
On  acquit-^  2.  Whenever  any  bill  of  indictment  shall  be  preferred  to 
person  i'n-  any  grand  jury,  under  the  provisions  of  the  Act  22  &  23 
haslior  *' Vict.  c.  17,  against  any  person  who  has  not  been  committed 
inuie(i°or  to  or  detained  in  custody,  or  bound  by  recognizance  to 
held  to  bail,  jji^g^ygj.    gudi    indictment,  and   the    person    accused    thereby 

court  niiiy  ,  '  ^  "^ 

order  prose- shall  bc  acquitted  thereon,  it  shall  be  lawful  for  the  court 
costs^toac-  before  which  such  indictment  shall  be  tried,  in  its  discre- 
thfnk  the*^  tiou  to  direct  and  order  that  the  prosecutor  or  other  person 
prosecution  j^y   q^  ^t  whosc  iustancc  sucli  indictment  shall  have  been 

unreason-        "^    »  i       i     n  i  i  i         .  i 

able.  preferred    shall   pay  unto  the  accused  person  the  just  and 

reasonable   costs,    charges,    and    expenses   of   such   accused 
person  and  his  witnesses    (if   any)  caused  or  occasioned  by 
or  consequent  upon  the  preferring  of  such  bill  of  indictment, 
to  be  taxed  by  the  proper  officer  of  the  court ;  and  upon  non- 
payment of  such  costs,  charges,  or  expenses  within  one  cal- 
endar  month   after   the   date  of  such  direction  and  order, 
it  shall  be  lawful  for  any  of  the  superior   courts   of  law 
at  AVestminster  or  any  judge  thereof,  or  for  the  justices  and 
judges  of  the  Central   Criminal   Court  (if  the  bill  of  indict- 
ment has    been    preferred    in    that   court),  to    issue   against 
the  person  on  whom  such  order  is  made  such   and  the   like 
writ  or  writs,  process  or  processes,  as  may  now  be  lawfully 
issued  by  any  of  the  said  superior  courts  for  enforcing  judg- 
ment thereof, 
^"^"s^rffo         '^'  ^^^^   whereas   complaint   is   frequently   made  by  per- 
be asked  by  sons  charged  with   indictable  offences,  upon  their  trial,  that 
(iTsinfto     they  are  unable  by  reason  of  poverty  to  call  witnesses  on 
nesses!'"     their   behalf,  and    that    injustice   is   thereby   occasioned   to 
them  ;    and  it  is  expedient  to   remove,  as   far  as  practicable, 
all  just  ground  for  such   complaint :    Therefore,  in   all  cases 
where  any   person    shall    appear  or  be  brought  before  any 
justice  or  justices  of  the  peace  charged  with   any  indictable 
offence,  whether  committed   within   this  realm  or  upon  the 
high  seas,  or  upon  land   beyond  the  sea,  and  whether  such 
person  appear   voluntarily   upon   smiimons,  or  has  been  ap- 
prehended with  or  without  warrant,  or  be  in  custody  for  the 
same    or   any    other  offence,  such  justice  or  justices,  before 
he    or   they   shall   commit  such  accused  person  for  trial  or 
admit   him    to    bail,  shall,  immediately    after    obeying    the 
directions  of  the   18th  section  of   the  Act   11    &   12  Vict, 
c.  42,  demand  and  require  of  the  accused  person  whether  he 
desires  to  call  any  witness  ;  and  if  the  accused  person  shall, 
in  answer  to  such  demand,  call  or  desire  to  call  any  witness 
*1 0991    *^^  witnesses, such  justice  or  justices  shall,  in  the  pres- 
*^-'   en(!e  of  such  accused  person,  take  the  statement  on  oath 
or  affirmation,  both  examination  and  cross-examination,  of 


APPENDIX.  1257 

those  who  shall  be  so  called  as  witnesses  by  such  accused  per- 
son, and  who  shall  know  anything  relating  to  the  facts  and 
circumstances  of  the  case  or  anything  tending  to  prove  the 
innocence  of  such  accused  person,  and  shall  put  the  same 

into  writinsr ;    and  such  depositions  of  such  witnesses  shall '^J^eirdepo- 
o'  -,      .  I  '111  •  sitioustobe 

be  read  over  to  and  signed  respectively    by   the  witnesses  taken  and 
who  shall  have  been  so  examined,  and  shall  be  signed  also  court  of 
by  the  justice  or  justices  taking  the  same,   and   transmitted  c"^g(j'*.jer'. 
in   due   course   of    law   with   tlie  depositions,  and  such  wit-  ^^^^  ^"'^ 
nesses,    not   being  witnesses  merely  to  the  character  of  the   , 
accused,  as  shall  in  the  opinion  of  the  justice   or  justices 
give  evidence  in  any  way  material  to  the  case  or  tending  to 
prove  the.  innocence  of  the  accused  person  shall  be  bound 
by   recognizance   to   appear   and   give  evidence  at  the  said 
trial ;    and  afterwards  upon  the  trial  of  such  accused  per- 
son  all  the  laws  now  in  force  relating  to  the  depositions 
of  witnesses  for  the  prosecution  shall  extend  and  be  appli- 
cable to  the  depositions  of  witnesses  hereby  directed  to  be 
taken. 

4.  All  the  provisions  of  the  said  Act  1 1  &  1 2  Vict.  c.  42,  Provisions 
relating   to   the    summoning   and    enforcing    the    attendance  vict.  c.  42. 
and  committal  of  witnesses,  and  binding  them  by  recogniz-  tMs^lct!^ '° 
ance  and  committal   in  default,  and  for  giving  the  accused 
persons  copies  of  the  examinations,  and  giving  jurisdiction 

to  certain  persons  to  act  alone,  shall  be  read,  and  shall  have 
operation  as  part  of  this  Act. 

5.  The  court  before  which  any  accused   person  shall  be  if  witnesses 
prosecuted  or  tried,  or  for  trial,  before  which  he  may    beboimd'by  ' 
committed    or    bailed    to    appear    for    any  felony   or  misde-  ^aucH^p- 
meanor,  is  hereby  authorized  and  empowered,  in  its  discre- P^*^r  *^^  ^^^ 

7  J  1  7  triul   court 

tion,  at  the  request  of  any  person  who  shall  appear  before  may'aiiow 
such  court  on  recognizance  to  give  evidence  on  behalf  Qf ^-''p^"*^^- 
the  person  accused,  to  order  payment  unto  such  witness  so 
appearing,  such  sum  of  money  as  to  the  court  shall  seem 
reasonable  and  sufficient  to  compensate  such  witness  for 
the  expenses,  trouble  and  loss  of  time  he  sliall  have  in- 
curred or  sustained  in  attending  before  the  examining 
magistrate,  and  at  or  before  such  court ;  and  the  amount  of 
such  expenses  of  attending  before  the  examining  magistrate, 
and  compensation  for  trouble  and  loss  of  time  therein,  shall 
be  ascertained  by  the  certificate  of  such  magistrate,  granted 
before  the  attendance  in  court ;  and  the  amount  of  all  other 
expenses  and  compensation  shall  be  ascertained  by  the 
proper  officer  of  the  court,  who  shall,  upon  receipt  of  the 
sum  of  sixpence  for  each  witness,  make  out,  and  deliver  to 
the  person  entitled  thereto  an  order  for  such  expenses  and 
compensation,  together  with  the  said  fee  of  sixpence,  upon 
such  and  the  same  treasurers  and  officers  as  would  now  by 
law  be  liable  to  payment  of  an  order  for  the  expenses   of 


1258  APPENDIX. 

the  prosecutor  or  witnesses  against  such  accused  person ; 
and  if  tlic  accusation  be  of  sucli  Icind  that  the  court  shall 
have  no  power  to  order  the  expenses  of  the  prosecutor,  then 
*1  "»9'^1  *^'P^^"  ^^^^  treasurer  or  other  officer  in  the  caj)acity  of 
'  J  a  treasurer  of  the  county,  riding,  division,  city,  bor- 
ough or  place  where  the  oil'ence  of  such  accusetl  person  may 
be  alleged  to  have  been  committed,  which  treasurer  or  other 
officicr  is  hereby  required  to  j)ay  the  same  orders  n})on  sight 
thereof,  and  shall  be  allowed  the  same  in  his  accounts  :  Pro- 
vided always,  that  in  no  case  shalLany  such  allowances  or  com- 
pensation exceed  the  amount  now  by  law  permitted  to  be 
made  to  prosecutors  and  witnesses  for  the  ])rosecution  ; 
and  provided  always  that  such  allowances  and  compensa- 
tion shall  be  allowed  and  paid  as  part  of  the  expenses  of 
the  prosecution.  - 
Power  to         (5.  And  whereas  by  the  17th  section  of  the  Act  11  &  12 

lake  depo-    _..,  j ->      •       •  •        i  i  •  • 

sitionof      Vict.  c.  42,   it  IS   permitted  under  certain  circumstances  to 
gerouKiy'^"*  read  in  evidence  on  the  trial  of  an   accused  person   the  depo- 
jj|j'g^"'jQ"*'*sition  taken   in   accordance  with   the  provisions  of  the  said 
^«'^'^'"'      Act  of  a  witness    who  is  dead,  or  so    ill  as  to  be   unable 
make  same  to  travel ;  and   whereas   it  may  happen  that  a  person  dan- 
certai?!*'^  ^"^  gerously  ill,  and  unable  to  travel,  may  be  able  to  give  mate- 
after'death  ^'^^^    ^'^^    important   information    relating   to   an    indictable 
of  such       oftence,  or  to  a  person   accused  thereof,   and   it  may  not  be 
practical  or  permissible  to  take,  in  accordance  witii  tlie  pro- 
visions of  the  said  Act,  the  examination   or  deposition  of  the 
person  so  being  ill,  so  as  to  make  the  same  available  as  evi- 
dence in  the  event  of  his  or  her  death  before  the  trial  of 
the  accused  person,  and  it    is  desirable  in    the    interests  of 
truth   and  justice  that  means    should  be  provided  for  per- 
petuating such  testimony,  and  for  rendering  tiie  same  avail- 
able   in   the  event  of  the  death   of  the   person   giving  the 
same  :    Therefore,  whenever  it  shall    be  made  to  appear  to 
the  satisfaction  of  any  justice  of  the  peace  that  any  person 
dangerously    ill,    and    in    the    opinion    of    some    registered 
medical  practitioner  not  likely  to  recover  from  such  illness, 
is  able  and  willino;  to  give  material  information  relatino-  to 
any  indictable  offence,    or    relating   to   any  person    accused 
of  any  such  offence,  and    it  shall  not  be  practicable  for  any 
justice  or  justices  of  the   peace  to  take  an  examination  or 
deposition,  in    accordance  with    the    provisions  of  the  said 
Act  of  the  person  so  being  ill,  it  shall  be  lawful  for  the  said 
justice  to  take  in  writing  the  statement  on  oath  or  affirma- 
tion of  such  person  so  being  ill,  and  such  justice  shall  there- 
upon subscribe  the  same,  and  shall  add  thereto  by  way  of 
caption  a  statement  of  his  reason  for  taking  the  same,  and 
of  the  I  day  and  place  when  and  wlierc  the  same  was  taken, 
and  of   the  names  of  the  persons    (if  any)   present   at  the 
taking  thereof,  and,  if  the  same  shall  relate  to  any  indictable 


APPENDIX.  1259 

offence  for  which  any  accused  person  is  already  committed 
or  bailed  to  appear  for  trial,  shall  transmit  the  same  with 
the  said  addition  to  the  proper  officer  of  the  court  for  trial 
at  which  such  accused  person  shall  have  been  so  committed 
or  bailed ;  and  in  all  other  cases  he  shall  transmit  the  same 
to  the  clerk  of  the  peace  of  the  county,  division,  city, 
or  borough  in  Avliich  he  shall  have  taken  the  same,  who  is 
hereby  required  to  preserve  the  same,  and  file  it  of  record; 
and  if  afterwards,  upon  the  trial  of  any  offender  or  offence 
*to  which  the  same  may  relate,  the  person  who  made  r*iA94 
the  same  statement  shall  be  proved  to  be  dead,  or  if  it  L 
shall  be  proved  that  there  is  no  reasonable  probability  that 
guch  person  will  ever  be  able  to  travel  or  to  give  evidence, 
it  shall  be  lawful  to  read  such  statement  in  evidence,  either 
for  or  against  the  accused,  without  farther  proof  thereof,  if 
the  same  purports  to  be  signed  by  the  justice  by  or  before 
whom  it  purports  to  be  taken,  and  provided  it  be  proved  to 
the  satisfaction  of  the  court  that  reasonable  notice  of  the 
intention  to  take  such  statement  has  been  served  upon  the 
person  (whether  prosecutor  or  accused)  against  whom  it  is 
proposed  to  be  read  in  evidence,  and  that  such  person,  or 
his  counsel  or  attorney,  had  or  might  have  had,  if  he  had 
chosen  to  be  present,  full  opportunity  of  cross-examining 
the  deceased  person  who  made  the  same. 

7.  Whenever    a   prisoner   in   actual   custody   shall    have  Provision 
served  or  shall  have  received  notice  of  an  intention  to  take  p^Lmfer 
such    statement   as    hereinbefore   mentioned,  the    judge    or  j^'J-^^"^^  pres- 
iustice  of  the  peace  by  whom  the  prisoner  was  committed  taking  of 
or  the  visiting   justices  of  the  prison    in  which  he  is  con- 
fined, may,  by  an  order  in  writing,  direct  the  gaoler  having 

the  custody  of  the  prisoner  to  convey  him  to  the  place 
mentioned  in  the  said  notice  for  the  purpose  of  being  pres- 
ent at  the  taking  of  the  statement ;  and  such  gaoler  shall 
convey  the  prisoner  accordingly,  and  the  expenses  of  such 
conveyance  shall  be  paid  out  of  the  funds  applicable  to  the 
other  expenses  of  the  prison  from  which  the  prisoner  shall 
have  been  conveyed. 

8.  And   whereas   relief  has   been    given   by   the   statute  Provisions 
24  &  25  Vict.  c.  66,  to  persons  refusing,  from  alleged  con-  vict  c  m, 
scientious   motives,  to   be   sworn    as   witnesses  in    criminal  n|s°es"vvho 
proceetlings,  and   it   is   expedient   to   extend  that   relief  to  ""^Jeft  to  be 

■>  •       1  •  1  I'         '  n  sworn 

persons   required  to  serve  as  lurors  :  therefore  il  any  person  extended 

^  ]  -Ij.  •  •  ••!         to  jurors. 

summoned  or  required  to  serve  as  a  juror  in  any  civil  or 
criminal  proceeding  shall  refuse,  or  be  unwilling  from 
alleged  conscientious  motives,  to  be  sworn,  it  shall  be  lawful 
for  the  court  or  judge,  or  other  presiding  officer  or  person, 
qualified  to  administer  an  oath  to  a  juror,  upon  being  satis- 
fied  of    the   sincerity   of    such    objection,    to    permit   such 


1260  APPENDIX. 

person,  instead  of  being  sworn,  to  make  liis  or  her  solemn 
affirmation  or  declaration  in  tiie  words  following : 

"  I,  A.   B.,    do    solemnly,    sincerely,    and    truly    affirm 
and  declare  that  the  taking  of  any  oath  is,  accord- 
ing  to    my    religious    belief,    unlawful  ;    and    I    do 
also    solemnly,   sincerely,  and  truly  affirm    and    de- 
clare," etc. 
which  solemn   affirmation   and   declaration  shall  be  of  the 
same   force  and   effect,  and   if  untrue   shall   entail   all  the 
same  consequences  as  if  such  person  had  taken  an  oath  iu 
the  usual  furm  ;  and  whenever    in    any  legal   proceedings   it 
is  necessary  or    usual    to    state   or   allege   that  jurors    have 
been  sworn,  it   shall    not    be    necessary  to    specify  that  any 
particular  juror  has  made  affirmation  or  declaration    instead 
of  oath,  but  it  shall  be  sufficient  to  state  or  allege  that  the 
jurors  have  been  '*  sworn  or  affirmed." 
Money        ^iaoc-]        *^'  Where  any  prisoner  shall  be  convicted,  either 
pr'isoner'to         ^'  ^    suuimarily  or  other^vise,  of  larceny  or  other  offi?nce, 
purdm'er°  which  includcs  the  stealing  of  any  property,  and  it  shall  aj)- 
of  pr.  peity  ^^.j^^.  i^q  ^jjg  court  by  the  evidence  that  the  prisoner  has  sold 

not  known  i  •'  i       i  i 

tobestoien,  the  stolen  property  to  any  person,  and  that  such  person  has 
tion^of        had  no  knowledge  that  the  same  was  stolen,  and  that  any 
properly.     j^(^jj(.yg  have  been  taken  from  the  prisoner  on   his  apprehen- 
sion, it  shall  be  lawful   for  the  court,  on   the  application   of 
such  purchaser,  and  on  the  restitution  of  the  stolen  property 
to  the  prosecutor,  to  order  that  out  of  such  moneys  a  sum  not 
exceeding  the  amount  of  the  proceeds  of  the  said  sale  be  de- 
livered to  the  said  purchaser. 
Governorof      10.  Where  rccoguizances  shall  have  been  entered  into  for 
^JhiiImip'     the  appearance  of  any  person  to  take  his  trial  for  any  offence 
any'perso'ii^t  any  court  of  Criminal  jurisdiction,  and  a  bill  of  indictment 
indicied     shall  be  fouud  against  him,  and  such  person  shall  be  then  in 
writ  of       the  prison  belonging  to  the  jurisdiction  of  such  court,  under 
cortfus^,       warrant  of  commitment,  or   under  sentence   for  some  other 
of  court.'^^^  offence,  it  shall  be  lawful  for  the  court,  by  order  in  writing, 
to  direct  the  governor  of  the  said  prison  to  bring  up  tlie  body 
of  such  person  in  order  that  he  may  be  arraigned  u})on  such 
indictment  without  writ  of  habeas  corpus,  and  the  said  gov- 
ernor shall  thereu|)on  obey  such  order. 
Extent  of        H.  This  Act  shall  not  extend  to  Ireland. 
coni-  12.  This  Act  shall  come  into  operation  on  the  first  day  of 

meiirof     October,  one  thousand  eight  hundred  and  sixty-seven. 

Act. 


INDEX. 

[The  references  are  to  the  star  paging.] 


ABANDONMENT 

of  children  by  parents,  398.     See  Child. 

ABDUCTION, 

whetlier  an  offence  at  common  law,  267 

by  statute,  id. 

of  a  woman  from  motives  of  hicre,  id, 

of  woman  un  ler  21  years  against  the  will  of  her  guardian,  268 

offender  incapable  of  taking  property,  id. 

taking  away  a  woman  by  force,  witli  intent,  etc.,  id. 

of  girl  under  sixte<^n,  id. 

of  children  under  fourteen,  id. 

what  consiitutes,  21)9 

meaning  of  word  "taking,"  id. 

meaning  of  word  "possession,"  270 

proof  of  want  of  consent  of  guardian,  271 

of  age,  272 

bond  fide  belief  of  over  age  no  defence,  id, 

of  intent,  id. 

of  the  woman  being  an  heiress,  id. 

ABETTORS.    See  Accessoi-y. 

ABOMINABLE  CRIME.     See  Infamous  Crime. 

ABORTION. 

procuring,  nt  common  law,  274 
by  statute,  id. 

administering  poison  to  procure,  id. 
.    proof  of  administering,  id. 

proof  of  the  natm-e  of  the  tiling  administered,  275 
woman  need  not  be  quick  with  chill,  274 
proof  of  the  intent,  276.     See  Poison, 
manslaughter  in  procuring,  725 

ACCEPTANCE, 

obtaining,  by  false  pretences,  498 

ACCEPTING 

bill  of  exchange,  etc.,  without  authority,  553 

ACCESSORY, 

wliat  offences  admit  of,  181 

aiding  and  abetting  in  felony,  id, 

before  the  fact  in  felony,  183 

bare  permission,  id. 

countermand,  id. 

by  the  in  ervention  of  a  third  person,  id, 

degree  of  incitement,  id. 

principal  varying  from  orders,  181 

whether  there  can  be  in  manshuiKhter,  181,  707 

how  they  are  to  be  indicted,  tried,  and  punished,  83,  185 

1261 


1262  INDEX. 

ACCESSORY— co7!/mi/ed 

after  tlie  fact  in  felony,  186 
husband  and  wife,  id. 

how  indicted,  tried,  and  punished,  188 
aiders  and  abettors  in  misdemeanor,  id. 
accessories  in  misdemeanors.  189 
venue  and  jurisdiction,  id. 

accessories  under  tiie  Explosive  Substances  Act,  id. 
aiding  under  tlie  Corrupt  Practices  Act,  345 
in  coining,  412 

proceedings  against,  for  forgery  and  offences  connected  therewith,  562 
who  is,  in  forgery  and  uttering,  oU3 
after  the  fact  to  murder,  how  punished,  747 
to  murder,  808 
to  piracy,  870 

to  offences  relating  to  post-office,  876 
to  rape,  902 

ACCIDENT, 

death  caused  by,  716.     See  Manslaughter  and  Murder, 

ACCOMPLICE 

always  admissible  as  a  witness,  130  » 

leave  of  court  must  be  obtained,  131 

how  obtained  where  he  is  to  be  taken  before  grand  jury,  id. 

wlien  he  will  be  acquitted  in  order  that  he  may  give  evidence,  id, 

com|5etent  witness  for  prisoner,  132 

not  inadmissible  because  he  lias  a  promise  of  pardon,  id. 

corroboration  of,  id 

conviction  on  testimony  of,  uncorroborated,  is  legal,  id. 

but  IK  it  usual,  id. 

anumalous  state  of  the  law,  id. 

betters  not  accomplices,  133 

nature  of  corrobo ration  which  it  is  usual  to  require,  133 

situation  of,  when  called  as  a  witness,  135 

what  claim  he  has  to  pardon,  id. 

evidence  given  by,  may  be  used  against  him  as  a  confession,  136 

ACCOUNTANT-GENERAL, 

forgeries  of  name  of,  or  documents  issued  by,  564 

ACQUIESCENCE.     See  Omseni. 

whether  it  will  excuse  a  nuisance,  817 

ACTS  OF  PARLIAMENT, 

how  proved,  161,  167 

all  public  except  otherwise  declared,  167 

ADMINISTERING, 

proof  of,  274  ' 

ADMINISTRATION, 

obtaining  property  by  raeajis  of  false  letters  of,  558 
proof  of  letters  of,  172 

ADMINISTRATOR, 

when  property  may  be  laid  in,  688 

ADMIRALTY, 

jurisdiction  of  court  of,  254 

ADMISSIBILITY  OF  EVIDENCE.    See  Evidence,  Hearsay,  Dying  Declaration. 
question  forjudge,  13 
preliminary  questions  of  fact  liow  decided,  id. 


INDEX.  1263 


ADMISSION.     See  Confessions,  Evidence. 
in  criminal  oases,  7 

by  agents,  not  generally  evidence  against  principal,  52 
by  prosecutor,  not  generally  evidence  for  prisoner,  53 
of  publication  of  libel,  7UG 

ADULTERATION 

of  food,  393,  824 

ADULT  P:RER, 

larceny  of  goods  of  husband  by,  in  conjunction  with  wife,  681 
killing  of,  by  husband,  776 

ADULTERY,  327 

ADVANCE, 

unlawfully  obtaining,  by  agent,  banker,  factor,  etc.,  280 

ADVERSE  WITNESS, 

examination  of,  in  chief,  141 
contradicting,  142 

AFFIDAVITS, 

proof  of,  170 

perjury  in,  837,  839,  842,  847 

AFFINITY, 

when  it  justifies  maintenance,  720 

AFFIRMATION 

in  lieu  of  oath,  122 

in  lieu  of  oath,  perjury  may  be  assigned  on,  123,  845 

AFFRAY.     See  Riot. 
what  constitutes,  277 
whether  parties  present  at  a  prize  fight  are  guilty  of,  id. 

AGE.     See  Infancy. 
proof  of,  272,  903 

AGENT, 

admissions  by,  not  generally  evidence  against  principal,  53 

embezzlement  by,  278 
fraudulently  selling  property,  279 

under  power  of  attorney,  id. 

obtaining  advances  on  property,  280 

exception,  id. 

definition  of  terms,  id. 
persons  accused  not  protected  from  answering,  162,  281 
when  not  liable  to  prosecution,  id. 
nature  of  disclosure,  id. 
cases  uridef  statute,  282 
direction  in  writing,  id. 
barratry  by,  325 
publi.aVion  of  libel  by,  707 
liability  for  nuisance  caused  by,  825 
ratification  of  receipt  by  agent,  917 

AGGRAVATED  ASSAULT.    See  Assault. 

AGRICULTURAL  PRODUCE, 

setting  fire  to,  286,  287,  294 

AIDING  AND  ABETTING.    See  Accessory. 

AIDER, 

by  verdict,  234 


1264  INDEX, 

ALIBI,  17 

ALIEN, 

trial  of,  212 

ALTERATION 

of  document  is  forgery,  564 

ALTERING.     See  Forgery. 

AMBASSADORS, 

proof  of  marriage  in  houses  of,  333 

AMENDMENT, 

eflect  ol',  in  enlarging  issue,  87 

power  of,  209 

atier  verdict,  211,  224 

of  judgment,  227 

AMICABLE  CONTEST,    fiee  Sports. 

ANATOMY  ACT.    See  Dead  Bodies. 

ANCIENT  DOCUMENTS,    ^qq  Documents. 

ANCIENT  POSSESSION, 

liearsay  evidence  to  prove,  29 

ANGLING 

in  tlie  day  time,  528 

ANIMALS, 

wliat,  included  in  term  cattle,  389 

stealing  certain  kinds  of,  id. 

killing  with  intent  to  steal,  id. 

killing,  maiming,  or  wounding,  id. 

cruelty  to,  390,  391 

drugging,  id. 

ferfe  naturre,  larceny  of,  526 

what  are  fera?  naturse,  id. 

larceny  may  be  committed  of  them  when  dead,  id. 

or  when  tamed,  id. 

not  if  kept  for  pleasure  528 
keeping  dangerous  animals,  824 
unnatural  offence,  967 

ANIMO  FURANDI, 
meaning  of  term,  647 

APPEAL.     See  Error,  Bill  of  Exceptions,  Neiv  Trial,  Court  of  Criminal  Appeal. 

APPOINTMENT  OF  OFFICERS, 

how  proved,  6 
when  presumed,  18 

APPREHENSION  OF  OFFENDERS, 
rewards  for,  245 
power  of,  generally,  262 
by  private  persons  at  common  law,  id. 

on  suspicion  of  felony,  id. 

to  prevent  breach  of  the  peace,  id. 

of  night  walkers,  id. 
by  private  persons  by  statute,  263 

of  persons  found  committing  ofTences  by  night,  id. 

by  owner  of  property,  id. 

of  persons  committing  oflences  against  game  laws,  598,  603 


INDEX.  1265 


APPREHENSION  OF  OFFENDERS— con^mwe^. 
by  peace  oliiccr  without  warrant,  263 

at  coiumou  law,  id. 

ou  suspicion  of  felony,  id. 

dilltireiice  between  peace  officers  and  private  persons,  id. 

after  breach  of  the  peace,  id. 

by  statute,  2()5 

under  Metropolitan  Police  Acts,  id. 

under  Rural  Police  Act,  id. 

under  Prevention  of  Crimes  Act,  266 
assault  to  prevent,  302 

killing  by  otlicer  and  others  in  course  of.     See  Murder. 
ticket-of-leave  men,  2G6 

APPRENTICES, 

assault  on,  by  master,  307 

ill-treating,  634 

master  bound  to  provide  medical  attendance  for,  635 

APPROVER.    See  Accomplice. 

ARMS.     See  Loaded  Arms.    Shooting. 

what  are,  in  offence  of  smuggling,  964 
what  are,  in  ofiences  against  game  acts,  602 

ARMY, 

forgeries  relating  to  the,  564 

ARRAIGNMENT 
in  general,  198 

where  the  prisoner  stands  mute,  199 
where  he  appears  to  be  insane,  id. 
for  previous  conviction,  234 

ARRAY.     See  Challenge  of  Jurymen. 

ARREST.     See  Apprehension,  Constable. 
protection  of  witnesses  from,  114 

AJIREST  OF  JUDGMENT,  225 
proceedings  in,  234 

ARSON, 

evidence  to  explain  motives  and  intentions,  102 

at  common  law,  284,  289 

meaning  of  term  "setting  fire,"  id.,  id. 

churches  and  chapels,  285 

dwelling-house,  id. 

house,  out-house,  manufactory,  farm,  etc.,  id. 

railway-station,  ports,  docks,  etc.,  id. 

public  buildings,  286 

other  buildings,  id. 

goods  in  buildings,  id. 

attempts  to  commit,  286,  287 

crops  of  corn  and  other  vegetable  produce,  286 

stacks  of  corn,  wood,  and  coals,  287 

coal  mines,  id. 

ships  or  vessels,  287,  288,  289 

malice  against  owner  unnecessary,  289 

person  in  possession  of  property  may  be  convicted  of,  id. 

intent  to  defraud  particular  person  need  not  be  stated,  id. 

proof  of  setting  fire,  id. 

of  property  set  fire  to,  290 

80 


1266  INDEX. 

ARSON — continued. 

meaning  of  term  "  house,"  290 

chapel,  291 

outhouse,  td. 

shed,  293 

stacks,  294 

wood,  id: 

ships  and  vessels,  td. 
setting  tire  to  goods  in  a  man's  own  house,  id. 

to  goods  in  house  of  another,  290,  295 
to  house  when  persons  are  therein,  296 
possession  how  described,  id. 
proof  of  malice,  id. 
proof  of  intent,  297 
proof  of  attempt  to  commit,  299 
what  amounts  to  attempt  to  commit,  id, 

ART, 

injuries  to  works  of,  988 

ASPORTAVIT, 

what  is  sufficient  in  larceny,  650 

ASSAULT, 

with  intent  to  rob,  conviction  for,  on  indictment  for  robbery,  84,  931 

to  prevent  escape  from  shipwreck,  300 

shooting  or  wounding,  301 

what  constitutes  loaded  arms,  id. 

inflicting  bodily  injury,  id. 

attempting  to  choke,  id. 

on  clergymen,  id. 

on  persons  endeavoring  to  save  shipwrecked  property,  302. 

with  intent  to  commit  felony,  id. 

to  prevent  apprehension,  id. 

on  peace  officer,  id.,  302,  310 

to  prevent  sale  of  grain,  302 

on  seamen,  303 

arising  from  combination.    See  Conspiracy  in  restraint  of  trade, 

bar  to  further  proceedings,  303,  309 

occasioning  bodily  harm,  303 

punishment  for  common,  id. 

indecent,  on  females,  id. 

indecent,  on  males,  id. 

prosecution  for,  by  guardians  and  overseers,  304 

costs  of  prosecution  for.     See  Costs. 

with  intent  to  rob.    See  Robbery. 

what  amounts  to,  304. 

pointing  loaded  arms  at  a  person,  id. 

striking  at,  or  threatening  to  strike  at,  id. 

exposing  a  child,  305 

administering  poison,  id. 

mere  omission  of  duty  does  not  amount  to,  id. 

words  do  not  amount  to,  id. 

consent  puts  an  end  to,  306 

mere  submission  does  not,  id. 

in  cases  of  rape,  306,  -904 

reasonable  chastisement  does  not  amount  to,  307 

in  self  defence,  id. 

in  defence  of  other  persons,  308 

to  prevent  an  unlawful  act,  id. 

to  prevent  breach  of  peace,  id. 

proof  of  aggravating  circumstances,  309 

assaults  with  intent,  id.,  311 

conviction  for  common  assault  on  indictment  for  unlawful  wounding,  etc.,  309 


INDEX.  1267 

ASSAVLT— continued. 

subsequent  proceedings  after  complaint  before  justice  for,  303,  309 

on  peace  officer,  310 

indecent  assault,  id. 

on  deer-keepers,  449 

duty  to  retreat  upon,  772 

with  intent  to  commit  rape,  904 

with  intent  to  rob,  932 

on  revenue  officers,  905 

ASSEMBLY,  UNLAWFUL.    See  Unlawful  Assembly,  Riot. 
lawful,  disturbing,  450 

ATTACHMENT, 

expenses  of  witness  need  not  be  tendered  before  applying  for,  113 
but  sometimes  safer  to  do  so,  id. 

of  witness  for  not  obeying  subpoena,  how  applied  for,  111,  112 
power  of  quarter  sessions  to  grant,  1 12 

ATTEMPT, 

conviction  for,  on  indictment  for  principal  offence,  84,  312 

to  commit  arson,  286,  287 

to  commit  offences,  311 

how  punishable  at  common  law,  id. 

statutes  relating  to,  id. 

attempting  to  choke,  301. 

what  amounts  to,  312 

to  shoot,  what  amounts  to,  id. 

to  commit  arson,  what  amounts  to,  299,  312 

to  coin,  what  amounts  to,  313 

to  steal,  what  amounts  to,  314 

aiding  in  attempt,  id. 

to  bribe  officers  of  justice,  348 

ATTEMPTS 

to  commit  murder,  809 

ATTENDANCE  OF  WITNESSES.    See  Witnesses, 

ATTESTING  WITNESS, 

when  necessary  to  be  called,  176 
when  dispensed  with,  178 

ATTORNEY, 

privilege  of.  not  to  disclose  communications,  153 

to  what  cases  it  extends,  153,  156,  157 

privilege  belongs  to  the  client,  id. 

may  be  waived  by  him,  160 

presumed  that  client  insists  on  it,  id. 

embezzlement  by,  278,  279,  282 

misappropriation  by,  id.  ^ 

barratry  by,  325 

when  not  liable  for  maintenance,  720 

ATTORNEY,  POWER  OF, 

fraudulently  selling  under,  279.    See  Agent. 

ATTORNEY-GENERAL, 

right  of,  to  reply,  221 

fiat  of,  necessary,  on  writ  of  error,  234 

AUTHORITY, 

person  in,  46 

forgery  of,  554 

drawing,  indorsing,  etc.,  documents  without,  id. 


1268  INDEX. 

AUTKEFOIS  ACQUIT 

plea  of  202 

liow  tried,  id. 

liow  proved,  203 

difficulties  of  proving,  id. 

proof  of  plea  of,  in  burglary,  386' 

AUTREFOIS   CONVICT, 

plea  of,  202.     See  Autrefois  Acquit. 

AVERMENTS, 

divisible,  83-86.     See  Indictments. 
in  libel.     See  Libel. 

AVOWTERER, 

larceny  of  goods  of  husband  by,  in  conjunction  with  wife,  681 
killing  of,  by  husband,  776 


BAIL, 

false  personation  of,  493 

BAILEES, 

larceny  by,  641,  665 

larceny  of  goods  in  possession  of,  property  how  described,  686 

BALLOT, 

offences  relating  to,  456,  495.    See  Elections. 

BANK  OF   ENGLAND  OR  IRELAND, 

forgery  of  documents  issued  by  officers  of,  557 

embezzlement  by  officers  of,  461,  478 

making  false  entries  in  books  of,  547 

personating  owner  of  stock  in,  546,  570 

clerks  of,  making  out  false  warrants,  532 

forging  notes  of,  549,  557,  570 

making  or  having  materials  for  forging  notes  of,  548,  549,  556 

BANK  NOTES, 
forgery  of,  549 

purchasing  or  receiving  forged,  id. 
making  or  having  materials  for  forging,  550,  551 
proof  of  forgery  of,  572 
engraving,  id. 
larceny  of,  994 

BANKER, 

books,  proof  of,  174 
embezzlement  by,  278.     See  Agent. 
forgery  of  securities  issued  by,  549,  557,  570 
obliterating  name  of,  in  crossed  cheque,  554 

BANKING   COMPANY, 

larceny  by  members  of,  644,  6S0 

BANKRUPT, 

examination  of,  may  be  given  in  evidence  against,  161 

offences  by,  3 1 5 

proof  of  proceedings,  320 

obtaining  credit  by  false  pretences,  318 

Vexatious  Indiotments  Act  ap[)lied  to,  319 

proof  of  valid  bankruptcy,  id. 

obtaining  goods  on  credit,  321 

proof  of  concealine;it  of  goods  by,  322 

proof  of  value,  323 

proof  of  intent  to  defraud,  id. 

venue  in  indictment  against,  324 

arrest  of,  id: 


INDEX.  1269 


BANKRUPTCY, 

false  declaration  in  matters  of,  492 

witnesses  compelled  to  answer  on  examination  in,  161,  280 

proof  of  proceedings  in,  320 

BANNERS, 

secondary  evidence  of  inscriptions  on,  13 

BANNS, 

proof  of  publication  of,  335 

BAPTISM, 

destroying,  uttering,  or  forging  register  of,  557,  584 

giving  false  certilicate  of,  id. 

transmitting  false  copy  of  register  of,  to  registrar,  558 

BARRATRY, 

what  evidence  admissible  in,  93 

nature  of  oflunce,  325 

particulars  must  be  delivered  in,  194,  325 

BASTARD  CHILD, 

liow  to  be  described  in  indictment,  749 

BASTARDY, 

proceedings  in,  398 

BATTERY,     See  Assault. 

BAWDY  HOUSE, 
keeping,  803 
keeping,  what  is  evidence  of,  93,  823 

BELIEF, 

examination  of  witnesses  as  to  religious,  119,  120 
as  to  belief  in  facts  deposed  to,  147 
false  swearing  lo,  is  perjury.  l47,  825 
bond  fide  as  to  age  in  abduction,  272 
as  to  death  in  bigamy,  341 

BEST   EVIDENCE 

must  always  be  produced,  1.     See  Evidence. 

BETTERS 

not  accomplices,  133 

BIAS  OF  JURORS,  215,  216 

BIGAMY, 

presumption  against,  18 
presumption  of  duration  of  life  in,  19 

husband  and  wife,  how  far  competent  witnesses  in,  129,  328 
offence  of,  326 

proof  of  valid  marriage,  327 
second  marriage,  id. 
fust  mai-riage  not  presumed,  328 
prisoner's  admission  of,  id. 
second  wife  a  competent  witness,  id. 
proof  that  valid  ceremony  was  performed,  id. 
marriages  in  England,  id. 

,       by  certificate  of  registrar,  id. 
among-t  Jews  and  Quakers,  330 
in  Wales,  id. 
abroad,  id. 
in  colonies,  331 
in  Scotland,  id. 
in  Ireland,  id. 

between  Roman  Catholics,  332,  334 
in  houses  of  ambassadors,  333 
before  a  consul,  id. 


1270  INDEX. 

BIGAMY — continued. 

preliminary  ceremonies,  334 

will  be  presumed,  id. 
what  marriages  are  voidable,  id. 

by  an  idiot,  id. 
by  a  lunatic,  id. 
what  marriages  are  void,  335 
by  banns,  id. 
by  minors,  336 
by  license,  337 
in  an  assumed  name,  id. 
abroad, id. 
foreign  law  how  proved,  id. 
marriage  confirmation  acts,  338 
proof  of  identity  of  persons,  339 

proof  that  first  wife  is  alive,  id.  , 

proof  after  absence  of  seven  years,  340 
venue,  id. 

proof  in  defence  under  the  exceptions  in  the  statute,  id. 
Englislj,  not  subject,  id. 
seven  years'  absence,  341 
bond  fide  belief  of  death  id. 
divorce,  342 

former  marriage  declared  void,  id. 
on  whom  orms  probandi  lies,  341 

BILL  OF   EXCEPTIONS, 
none  in  criminal  case,  234 
contra  in  United  States,  id. 

BILL  OF   EXCHANGE, 

inducing  persons  by  false  pretences  to  accept,  sign,  etc.,  498 
drawing,  indorsing,  etc.,  without  authority,  654 
forging  a,  549,  553,  559 
proof  of  forging,  573 
larceny  of,  992 

BILL  OF  PARTICULARS,  195 

BIRTH, 

certificate  of,  proving,  175 

concealing,  400 

false  declaration  touching,  491 

destroying,  altering,  or  forging  register  of,  557,  584 

giving  false  certificate  of,  id. 

transmitting  false  copy  of  register  of,  to  registrar,  558 

BLASPHEMOUS  LIBEL.     See  Libel. 

BODILY  FEAR, 

stealing  in  dwelling  house  and  putting  person  in,  453 

BODILY    HARM.     See  Grievous  Bodily  Harm. 
inflicting,  with  or  without  weajjon,  301 
assault  occasioning,  303 

conviction  for  inflicting,  good,  though  not  intended,  309 
conviction  for  common  assault  on  indictment  for  doing,  id. 

BONDS, 

forgery  of,  553 
larceny  of,  994 

BOUNDARIES 

of  counties,  offences  committed  on,  249 

BOUNTY   MONEY, 

obtaining  by  false  pretences,  525 


INDEX.  1271 

BOXING  MATCH.    See  Prize  Fights. 

BOYCOTT,  443 

BRAWLING, 

proceedings  for,  450 

BREACH   OF  PEACE, 

assault  to  prevent,  308 
apprehension  to  prevent,  262 
apprehension  after,  id.,  264 

BREAKING, 

proof  of,  in  burglary,  etc.,  360 
proof  of,  in  prison  breach,  888 

constructive,  not  sufficient,  id, 

BREAKING  BULK 

not  necessary  to  prove  in  indictment  against  bailee,  641 

BREAKING  OUT, 
burglary  by,  359 
of  dwelling-house,  proof  of,  386 

BRIBERY, 

nature  of  the  offence,  343,  344 
at  elections,  id. 
treating,  id. 
undue  influence,  id. 
corrupt  practice,  344 

when  a  misdemeanor,  345 
when  a  felony,  id. 
legal  proceedings  in  respect  of,  346 
limitation,  id. 

conviction  for  illegal  practice,  id. 
accused  and  husband  and  wife  competent  witnesses,  id. 
costs,  347 
disqualification  of  candidates  and  voters,  id. 
indictment,  348 
in  other  cases,  id. 

BRIDGES, 

indictment  for  not  repairing,  349 

what  are  public,  id. 

highway  at  each  end,  351 

dedication  of,  352 

proof  of  being  out  of  repair,  id. 

liability  of  county  to  repair,  id. 

liability  of  county  to  repair  new,  353 

liability  of  public  companies  to  repair,  354 

liability  of  individuals  to  repair,  355 

evidence  of  repair  by  individuals,  id. 

liability  to  repair,  rations  tenuroe,  id. 

Droof  in  defence  on  indictment  for  not  repairing,  356 

by  counties,  id. 

by  individuals,  id. 

by  corporations,  id. 
venue  and  trial,  id. 

who  may  be  jurors  on  trial  of  liability  to  repair,  id. 
maliciously  pulling  down,  357 
new  trial  on  indictment  for  not  repairing,  id. 

BROKER, 

embezzlement  by,  278,  279,  282.    See  AgenL 


1272  INDEX. 

BUILDING, 

setting  lire  to,  285,  286  _ 

setting  fire  to  goods  in,  id. 

attempting  to  set  lire  to,  286 

adjoining  a  dwelling-liouse  in  burglary,  368 

stealing  tixtnres  from  a,  oo3 

riotously  demolishing,  1)04 

meaning  of  term,  29U 

BUILDING   SOCIETIES, 
larceny  of  property  of,  646 

BUOYS, 

injuries  to,  957 

BURDEN   OF   PEOOF,  17.    See  Onus  Probandi. 

BURGLARY, 

oQ'ence  of,  at  common  law,  359 

by  statute,  id. 

by  breaking  out,  id. 

punishment  of,  id. 

what  building  to  be  deemed  part  of  dwelling-house,  359,  360 

entering  dwelling-house  with  intent  to  commit  felony,  359 

being  found  armed  with  intent  to  commit,  id. 

after  a  previous  conviction,  300 
proof  of  breaking,  id. 

when  not  necessary,  id. 

doors,  id. 

windows,  302 

chimneys,  363 

fixtures,  cupboards,  etc.,  id. 

walls,  id. 
proof  of  breaking  gates,  364 

constructive  breaking  by  fraud,  id. 

constructive  breaking  by  conspiracy,  id. 

constructive  breaking  by  menaces,  365 

constructive  breaking  by  one  of  several,  id. 
proof  of  entry,  o60 

introduction  of  fire-arms  or  instruments,  id, 

by  firing  arms  into  the  house,  307 
constructive  entry  by  one  of  several,  id. 
proof  that  the  premises  are  a  dwelling-house,  id, 

buildin-is  adjoining  a  dwelling-house,  368 

before  the  7  &  8  Geo.  4,  c.  29,  s.  1 3,  id. 

cases  decided  on  that  statute,  309 
occupation,  how  to  be  described,  370 

temporary  absence,  371 
when  liouse  occupied  by  several,  372,  373 

lodgers,  373 

wife  and  family,  375 

clerks,  id. 

public  companies,  id. 

servants,  377 

tenants,  379 

guests,  380 

partners,  381  / 

proof  of  local  description,  id, 

proof  of  oRence  having  been  committed  by  night,  id. 
proof  of  intent  to  commit  felony,  382 
variance  in  statement  of  intent,  384 
proof  of  breaking  out,  380 
proof  upon  jilea  of  autrefois  acquit,  id. 
proof  of  being  found  by  night  armed,  with  intent,  387 
proof  of  having  possession  of  implements  of  housebreaking,  id. 


INDEX.  1273 


BUHCAjA-HY— continued. 

what  are  implements  of  housebreaking,  8SS 

prisoner  may  be  convicted  of  larceny  on  indictment  for,  83,  385 

BUEIAL, 

obstructing,  a  misdemeanor,  446 

destroying,  altering,  or  forging  register  of,  557,  5S4 

giving  false  certilicate  of,  ul. 

transmitting  false  copy  of  register  of,  to  registrar,  558 

riotous  behavior  at,  925 

BURN, 

sending  letters  threatening  to,  974 

BY-LAWS, 

proof  of,  174 
forging,  502 


CANALS, 

injuries  to,  952 

setting  lire  to  vessels  being  in,  288 

stealing  goods  from  vessels  on,  956 

CAPTION,  72 

CARDS, 

oflence  of  cheating  at,  394,  607 

CARNAL  KNOWLEDGE, 

of  girl  under  twelve  years,  897,  904 
of  girl  between  twelve  and  thirteen,  897 
definition  of,  8U8 
proof  of  age,  903 

CARRIERS, 

larceny  hy,  605 

larceny  of  goods  in  the  possession  of,  property  how  described,  687 

CATS, 

not  subject  of  larceny,  528 

CATTLE, 

killing  Willi  intent  to  steal,  389 

killing,  maiming,  or  wounding,  id. 

stealing,  id. 

v/liat  animals  included  under  the  term,  id. 

proof  of  injury  to,  390 

administeiing  poison  to,  not  a  felony,  id. 

proof  of  aialice  and  intent,  391 

vivisection,  id. 

drugging,  id. 

straying.     See  Larceny. 

CAUTION, 

to  prisoner  on  examination,  59,  60.    See  Examination  of  Prisoners. 
to  prisoner  on  ap{<rehension,  57 

CENTRAL  CRIMINAL  COURT, 

costs  in,  241 

jurisdiction  of.  259 

removing  indictments  into,  260 

CERTIFICATE.     See  also  Birth,  Marriage,  Death. 
of  birlh,  marriage,  etc,  proof  of,  174 


1274  INDEX. 

CERTIORARI, 

removing  indictment  by,  196 

costs  on  removal  of  indictment  by,  198 

CHALLENGE  OF  JURYMEN, 

different  kinds  of,  212 

time  and  mode  of  taking,  id. 

to  the  array,  213 

to  the  polls,  214 

grounds  of,  216 

etlect  of  improperly  allowing  or  disallowing,  216 

CHALLENGE  TO  FIGHT, 

indictment  for,  392 
.what  amounts  to,  id. 
proof  of  the  intent,  id. 
venue,  id, 

CHAMPERTY,  720 

CHANCERY, 

forgery  of  documents  issued  by  officers  of  court  of,  557 

CHANCERY  PROCEEDINGS, 

proof  of,  164,  171 
forgery  of,  555,  584 

CHAPEL, 

setting  fire  to,  285 
marriages  in,  ;  29 
breaking  and  entering,  453,  950 
riotously  demolishing,  924 

CHARACTER, 

evidence  of,  of  prisoner,  102 
of  witness,  103 
contradicting,  id. 

pai  ticulars  cannot  be  proved,  103,  105 
charge  of  the  court  as  to,  222,  235 

CHASTISEMENT, 

when  lawful,  307,  737,  769 
excessive,  causing  death,  737,  769 

CHASTITY, 

in  abduction,  268 

impeachment  of,  in  charges  of  indecent  assault,  310 

in  rape,  903 

in  seduction,  id. 

CHATTEL, 

evidence  of,  2 

whetlier  a  policy  of  insurance  is,  281 

deeds  are  not  at  common  law,  994 

CHEATING.     See  also  False  Pretences. 
offence  of,  at  common  law,  393 
cheats  affecting  public  justice,  id. 
selling  unwholesome  provisions,  id. 
false  accounting,  by  public  officers,  394 
false  weights  and  measures,  id. 
at  cards,  dice,  etc.,  394,  607 
using  false  tokens,  395 
what  cheats  are  not  indictable,  id. 


INDEX.  1275 


CHEQUES, 

obliteration  of  crossing  on,  554 
giving,  without  etiects,  500,  507 
larceny  of,  C75,  995 

CHILD.     See  Infant. 
infant  witness,  115 
chastisement  of,  307,  737,  769 
consent  to  ansault,  306,  310 
having  carnal  knowledge  of,  306,  310,  897,  904 
neglect  or  abandonment  of,  by  j)arents,  398 
prosecutions  by  guardians  and  overf-eers,  635 
employment  of,  in  dangerous  perforniances,  637 
abduction  of     See  Abduction, 
concealing  birth  of,  400 
murder,  747 

manslaughter  by  neglect  of,  736 
murder,  by  neglect  of,  764 
r:ipe  of,  897,  904 

larceny  of  goods  in  possession  of,  property  how  described, 
name  of,  how  described,  7£0 
infancy,  defence  of.     See  Iifancy, 

CHILD  MURDER, 

cannot  be  committed  of  child  in  the  womb,  749 

how  child  to  be  described  in  the  indictment,  750 

conviction  for  concealing  birth  on  indictment  lor,  83,  400,  747 

CHILD  STEALING,  268 

CHIMNEYS, 

proof  of  breaking,  in  burglary,  363 

CHLOROFORM,    ^ee  Poison. 

odministering,  with  intent  to  commit  indictable  offences,  872 

CHOKE, 

attempt  to,  301 

CHURCH, 

setting  fire  to,  285 

larceny  of  goods  from,  property  how  described,  692 

breaking  and  entering,  453,  950 

riotously  demolishing,  924 

CHURCHYARD, 

larceny  of  fixtures  in,  533 

CIRCUMSTANTIAL  EVIDENCE, 
value  of,  17 

CLERGYMAN, 

confessions  to,  not  privileged,  154 

assaults  on,  301 

bound  to  bury  dead  bodies,  446 

CLERK, 

occupation  of  dwelling-house  by,  in  burglary,  375 

embezzlement  by,  458 

who  is  a,  462 

assisting  in  obtaining  fraudulent  advances,  280 

COACH-HOUSE, 

sett  ins;  fire  to,  286 
riotously  demolishing,  924 


1276  INDEX. 

COAL, 

setting  fire  (o,  287 

COERCION  BY  HUSBAND,  1010 

COIN, 

evidence  of  intent  in  uttering  counterfeit,  95 

what  amounts  to  attempt  to,  ',i]o 

interpretation  of  terms  in  offences  relating  to,  404 

counterfeiting  gold  or  silver,  405 

coloring  witii  intent,  id. 

impairing  or    diminisliing,  406 

possessing  tilings  of  gold  or  silver,  id. 

buying  or  selling  counterfeit  gokl  or  silver,  id, 

importing  counterfeit  gold  or  silver,  407 

exporting  counterfeit,  id. 

uttering  counterfeit  gold  or  silver,  id. 

uttering,  having  possession  of  counterfeit  coin,  w?. 

uttering  twice  witliin  ten  days,  408. 

possessing  counte  rfeit  gold  or  silver,  id. 

uttering  or  having  after  a  previous  conviction,  id, 

uttering  foreign  as  current,  id. 

counterfeiting  copper  or  bronze  coin,  id. 

uttering  base  copper  or  bronze,  409 

defacing,  id. 

coiiuterfeiting  foreign  gold  or  silver,  id. 

importing  foreign  counterfeit  gold  or  silver,  410 

uttering  foreign  counterfeit  gold  or  silver,  id. 

counterfeiting  foreign,  other  than  gold  or  silver,  id. 

coining  to:)ls,  411 

venue  in  offences  relating  to,  412 

how  proved  to   be  counterfeit,  id. 

when  counterfeiting,  complete,  id. 

punishment  of  {principals  in  second  degree  and  accessories  in  offences  relating 

to,  id. 
counterfeit  medals,  id. 
proof  of   counterfeiting,  413 

uttering,  id. 

possession,  415. 
proceedings  for  second  and  third  offences,  415,  416 

COINING  TOOLS, 

making,  mending,  or  having,  411,  417 
conveying  out  of  mint,  411 

COLONIES, 

proof  of  proclamations,  treaties  of,  164 
proof  of  marriages  in,  331. 

COMBAT, 

killing  in  sudden  combat,  724 

COMMON  ASSAULT, 
punisiiment  of,  303 

conviction  on  indictment  for  actual  bodily  harm,  309 
for  unlawfully  wounding,  id. 
for  carnally  knowing  a  child,  904 
not  on  indictment  for  assault  with  intent  to  rob,  924 

COMMON  DESIGN, 
generally,  182 
in  murder,  752 
in  forgery,  593 

COMPANIES.     See  Public  Companies,  Corporations. 


INDEX.  1277 

COMPENSATION, 

to  persons  aggrieved,  in  felony,  229 

to  widows  and  fuiuilies  of  persons  killed  in  endeavoring  to  apprehend  offenders, 

247 

COMPETENCY  OF  WITNESSES.     See  Witnesses. 

COMPLAINT, 

eviiience  of,  in  cases  of  rape,  26 
in  other  cases  of  violence,  27 

COMPOUNDING  OFFENCES,  419 

COMPULSORY, 

disclosure,  whether  admissible  as  a  confession,  52,  I'l,  161,  281,  993 

CONCEALING  BIllTII, 

offence  of,  '1 00 

conviction  for,  on  indictment  for  child  murder,  83,  400,  747 

CONCEALMENT  OF  DEEDS  AND  INCUMBRANCES,  422 

CONDUCT, 

presumption  of  guilt  from,  19 
indecent,  820 

CONFESSIONS, 

to   magistrate   in  course  of   examination  of   prisoner.        See  Examination  of 

Prisoner. 
ground  of  admissibility  of,  40 
nature  and  ellect  of,  id. 
plea  of  guilty,  id. 

extra-judicial,  whether  sufficient  whereon  to  convict,  id. 
degree  of  credit  to  be  given  to,  41 
on  what  grounds  excluded,  42 
threat  or  inducement,  id. 

what  amounts  to  such,  42,  43,  44 

whether  it  must  have  reference  to  the  charge,  45 

religious,  inducement,  id. 

held  out  with  reference  to  another  charge,  46 

must  be  held  out  by  person  in  authority,  id. 

who  is  a  i)erson  in  authority,  id. 

offer  of  pardon  from  the  crown,  47 

when  held  to  have  ceased,  48 

when  held  not  to  have  ceased,  49 
when  obtained  by  artifice  or  deception,  51 
when  obtained  by  questioning,  id. 
in  the  course  of  legal  proceedings,  52 

when  tlie  disclosure  has  been  compulsory,  52,  151,  161.     See  Disclosure, 
Privilege. 
accompanying  delivery  of  stolen  property,  52 
evidence  only  against  the  party  making  them,  53 
in  conspiracy,     ^ee  Conspiracy. 

whether  names  of  other  prisoners  ou?ht  to  be  disclosed,  53 
of  principal  not  evidence  against  accessory,  id. 
of  thief  not  evidence  against  receiver,  id. 
by  agents,  difference  between  civil  and  criminal  cases,  id. 

when  admissible  against  principal,  id. 
admissions  by  prosecutor,  54 
whole  must  l)e  taken  together,  id. 
jury  may  reject  a  part,  55 
prisoner  may  deny  truth  of,  id. 
admission  not  conclusive,  id. 
where  f;ilse  in  fact,  id. 
where  void  in  point  of  law,  id. 
inferred  from  silence  or  demeanor,  56 


1278  INDEX. 

CONFESSIONS-cow<mMe(f. 

taken  down  in  writing,  how  proved,  56 
not  necessary  to  negative  inducement,  id, 
necessity  of  calling  constable,  57 
to  legal  adviser,  153 

physicians,  154 

surgeons,  id. 

clergymen,  id.     See  Privilege. 
if  privilege  not  claimed,  answers  of  witnesses  may  be  used  as,  161 
but  not  if  privilege  improperly  refused,  id. 

if  privilege  removed  by  statute  answers  admissible,  52,  151,  161,  281 
wliether  they  should  be  opened,  217 
of  marriage  in  bigamy,  328 

CONFIDENCE, 

privilege  on  the  ground  of,  153.     See  Privilege. 

CONSENT, 

want  of,  how  proved,  6 

when  presumed,  17 

depositions,  when  admissible  by,  79 

puts  au  end  to  assault,  306 

ditference  between,  and  submission,  id. 

obtained  by  fraud,  void,  271,  id. 

effect  of  receiving  evidence  by,  140 

in  misdemeanor,  id. 

effect  of,  in  rape,  306,  899 

to  a  nuisance,  817 

CONSPIRACY, 

evidence  in,  91,  428,  et  seq. 
particulars  in  indictments  for,  194,436 
indictment,  how  to  be  preferred  for,  423 
nature  of  the  crime  of,  id. 
overt  act,  how  far  necessary,  426 
proof  of  the  existence  of,  428 

by  declarations  of  others,  431 

by  acts  of   others,  id  ,  432 
proof  of  tlie  means  used,  433 
cum  dative  instances,  434 
proof  of  the  object,  435 
form  of  indictment  for,  436 
venue  in,  id. 
to  murder,  id. 
assault  in  pursuance  of,  443.  Post,  Conspiracies  in  Restraint  of  Trade. 

CONSPIRACIES  IN  RESTRAINT  OF  TRADE, 

at  common  law,  438 

by  statute,  id.,  442 

effect  of  statute  on  common  law,  441 

husband  and  wife  competent  witnesses,  129,444 

accused  a  competent  witness,  130,  444 

CONSTABLE.     See  Peace  Officer,  Police. 

threat  or  inducement  by.     See  Confession. 

need  not  always  be  called  to  negative  inducement,  56 

a[>prehension  by,  263 

assault  on,  302,  310 

embezzlement  by,  459 

larceny  by,  643 

when  liable  for  escape.     See  Escape. 

killing,  789.     See  Murder. 

killing  l)y,  id.     See  Murder. 

when  justified  in  breaking  doors,  797 

refusing  to  aid,  926 


INDEX  1279 


CONSTRUCTION, 

rules  of,  applicable  to  indictm  nts,  82.    See  Indidmenta. 

CONSTRUCTIVE  BREAKING, 
in  burglary,  proof  of,  364 

CONSTRUCTIVE  ENTRY,  367 

CONSUL, 

proof  of  marriage  before,  333 

CONTAGIOUS  DISEASE, 

spreading,  824 

CONTINUANCE,  200,  202 

CONTRADICTORY  WITNESS.    See  Witness^ 

CONTRIBUTORY  NEGLIGENCE, 
cases  of  manslaughter,  731,  732 

CONVERSATIONS, 

whether  they  should  be  opened,  217 

CONVICTION.    See  Previous  Conviction. 
date  of,  how  proved,  3 
when  proved  is  conclusive,  167 
of  principal  not  conclusive  in  indictments  for  receiving,  911 

COPIES, 

when  all  equally  originals,  4 

all  equally  authentic,  13 

copies  of,  14 

certified  when  admissible  in  evidence,  164,  169,  173 

of  indictment,  prisoner  not  entitled  to,  194 

of  depositions,  prisoners  when  entitled  to,  77,  78 

CORN, 

setting  fire  to,  286,  287,  294 

assault  with  intent  to  obstruct  sale  of,  302 

CORONER, 

depositions  taken  before,  when  admissible,  77.    See  Depositions, 

CORPORATION  BOOKS, 
proof  of,  168,  17 

CORPORATIONS, 

proof  of  certificate  of  incorporation,  174 

by-laws,  id. 
misappropriation  of  funds,  283 

larceny  of  goods  belonging  to,  property  how  described,  690 
property  how  proved,  691 
official  documents.     See  Documents. 

CORPUS  DELICTI  IN  MURDER,  748 

CORROBORATION, 

of  accomplice,  132.     See  Accomplice. 
what  sufficient,  133 
of  prosecution  in  seduction,  273 
what  sufficient  in  perjury,  856 
in  rape,  902 

CORROSIVE  FLUIDS, 
sending  or  throwing,  485 


1280  INDEX-. 

CORllUPT  PRACTICES.    See  Bribery,  Elections. 
deliiiition,  o44 
wlieii  ;i  inisticmeunor,  345 
wlion  a  icloiiy,  id. 
leg:il  pi-ocoedings,  346 

liiiiitalioii,  )'(/. 
husband  and  wife  competent  witnesses,  129,  346 
i»ccn.sed  a  eonipetont  witness,  13U,  346 
privilege  of  witnesses,  151 
"  indiciinent"  includes  "information,"  id. 
costs,  241,  347 

indictments  triable  at  the  Central  Criminal  Court,  260,  346 
ollences  at  elections,  4-37,  494 
witlidrawing  election  petition,  id. 
false  declarations  at  elections,  4'jO. 
false  personation  at  elections,  41)5. 

COSTS 

on  removal  of  indictment  by  certiorari,  198.     See  Highways. 
ill  court  of  criminal  appeal,  239 
in  cases  of  felony,  240 
wliat  witnesses  allowed  tlieir  costs,  id. 
on  postponement  of  trial,  201,  241 
in  cases  of  misdemeanor,  242 
in  assault.,  defendant  may  be  ordered  to  pay,  id. 
in  other  cases,  id- 
how  found  by  jury  in  Pennsylvania,  id. 
in  prosecutions  removed  into  central  criminal  court,  244 
in  offences  committed  on  the  higli  seas,  240,  244 
in  Trades  Union  oHences,  244 
in  cases  under  Debtors  Act,  id. 
in  ccmspiracy,  id. 

under  Corrupt  Practices  Act,  id.,  347 
in  lil)el.     See  Lihel. 

in  cases  within  the  Vexatious  Indictments  Acts,  costs  of  the  accused,  244 
of  witnesses,  etc.,  for  the  prisoner,  id. 
mode  of  payment,  245 

of  capital  prosecutions  in  exclusive  jurisdictions,  id. 
costs  in  borough,  id. 
compensation  to  prosecutor,  229 
rewards  for  apprehension,  245 
allovvaiice  to  widows  and  children,  247 
of  indictments  relating  to  highways,  244,  632 

COUNSEL 

statements  of  prisoner  by,  219 
when  not  liable  for  maintenance,  720 

COUNTING-HOUSE, 

breaking  and  entering,  453 

COUNTY, 

liability  of,  to  repair  bridges,  352 
larceny  of  property  of,  645 

COUNTY  COURT, 

proceedings  in,  how  proved,  3,  172 
forging  process  of,  555,  684 

COURSE  OF  BUSINESS,  311.    See  Hearsay. 

COURT, 

ordering  witnesses  out  of,  138 

of  record,  forgery  of  process  or  proceedings  of,  555 
not  of  record,  forgery  of  process  or  proceedings  of,  id. 
forgery  of  documents  issued  by  officers  of,  557 


INDEX.  1281 

COURT  OF  CRTISITNAL  APPEAL, 
practice  in,  230-210 
co.sts  in,  2-10 

wliat  (luestions  may  be  reserved  for,  238 
provisions  of  Judicature  Act  with  respect  to,  239 

COURT  ROLLS, 
forgery  of,  556 

COWS, 

stealing,  389 

killing  or  maiming,  389 

CREDiniLITY 

of  witness,  103,  144.     See  Witness. 
is  for  the  jury,  103 

CREDIT, 

obtaining  by  false  pretence,  318,  321 

of  witness,  perjury  on  answer  to  questions  affecting,  850 

CREMATION, 

wliether  legal  447 

CROPS, 

setting  fire  to,  286 

CROSSED  CHEQUES, 

forgery  or  obliteration  of,  554 

CROSS-EXAMINATION, 

how  conducted,  142 

prisoner  must  liave  opportunity  of,  to  render  depositions  admissible,  72 

of  witness  on  his  depositions,  144 

of  witnesses  producing  documents  only  not  allowed,  145 

where  prisoners  separately  defended,  id. 

as  to  previous  statements  in  writing,  143 

latitude  allowed  in,  id. 

CROWN, 

challenge  of  jury  by,  213 

CROWN  CASES  RESERVED.    See  Court  of  Criminal  Appeal. 

CROWN  OFFICE, 
subpoena  from,  112 

CURTILAGE. 

■what  building  within,  part  of  dwelling-house,  359,  368,  452 

CUSTOMS.     SeeSmugglinrj. 

false  declarations  relating  to,  492 
forgeries  relating  to,  564 
property  in,  647.     See  Larceny. 

CUTTING  AND  WOUNDING.    See  Wounding. 


DANGEROUS  ANIMALS, 

keeping,  824 

death  ca\ised  by,  755,  762 

DANGEROUS  GOODS,  818 

DANGEROUS  PERFORMANCES, 
employment  of  children  in,  637 

81 


1282  INDEX. 

DATE 

of  a  document  presumed  to  be  correct,  17 

DEAD  BODIES, 

offences  relating  to,  445 

larceny  cannot  be  committed  of,  id.,  647,  688 

clergymen  bound  to  bury,  id, 

dissection  of,  446 

cremation  of,  447 

of  persons  condemned  to  death  not  to  be  dissected,  id.] 

DEAF  AND  DUMB  PERSONS, 

compeient  witnesses,  117 
prisoner,  how  dealt  with,  198 

DEATH, 

proving  certificate  of,  175 
judgment  of,  228 
recording  judgment  of,  229 

for  setting  fire  to  ships  of  war,  288 

for  setting  fire  to  dockyards,  id. 

for  murder,  747 

for  mutiny,  638 

for  piracy,  867 
false  declaration  touching,  491 
destroying,  altering,  or  forging  register  of,  557,  584 
giving  false  certificate  of,  558 

transmitting  false  copy  of  register  to  registrar,  id. 
means  of,  need  not  be  stated  in  the  indictment,  747 
proof  of,  754 

DEBENTURES, 

forgery  of,  555 

DEBTORS,  FRAUDULENT.     See  Bankrupt. 

DECEASED  PERSONS, 

evidence  of  statements  by.     See  Hearsay,  Dying  Declarations. 
larceny  of  goods  of,  property  how  described,  688 

DECLARATIONS, 

evidence  of.     See  Hearsay,  Dying  Declarations,  False  Declarations. 

DEEDS, 

execution  of,  when  presumed,  179 
concealment,  suppression,  or  falsification  of,  422 
inducing  persons  by  false  pretences  to  execute,  498 
forgery  of,  553,  559,  572 
forgery  of  registers  of,  556 

DEER, 

stealing  or  pursuing  in  an  uninclosed  place,  448 
stealing  or  pursuing  in  an  inclosed  place,  id. 
larceny  of,  526 

DEER-KEEPERS 

may  seize  guns,  etc.,  of  persons  entering  land  in  pursuit  of  deer,  448 
assaulting,  419 

DEFENCE, 

how  conducted,  218 

Avhere  prisoners  separately  defended,  id. 

counsel  allowed  by  statute  in  felony,  220 

DEFILEMENT. 

procuring  of  girls  under  21  years  of  age,  897 


INDEX.  1283 

DEGRADING  QUESTIONS  • 

may  be  put  if  material,  152 

DEMAND. 

of  properly  with  threats.     See  Threats. 
of  property  upon  forged  documents,  558 

DEMURRER 

to  an  indictment  for  misdemeanor,  205 
for  felony,  id. 

DEPOSITIONS, 

when  admissible,  66 

proof  of,  171 

double  purpose  for  wliich  they  may  be  used,  06 

when  used  to  contradict  a  witness,  how  proved,  67 

rules  made  after  Prisoners'  Counsel  Act  id. 

cross-examination  of  witnesses  upon,  id. 

difference  between  adding  to  and  varying.  68 
when  used  as  substantive  evidence,  how  proved,  id. 

reason  why  tlie  rule  is  different,  id. 

comparison  of  tiie  two  rules,  id. 
in  what  cases  admissible  as  substantive  evidence,  69,  171 

at  common  law,  id. 

by  statute,  id. 

witness  kept  out  of  the  way,  id. 

witness  insane,  70 

witness  too  ill  to  travel,  id. 

medical  attendant,  when  to  be  called,  71 
not  admissible  at  all.  unless  formally  taken,  id. 
must  have  been  taken  on  oath,  72 
mode  of  taking,  id. 

caption,  id. 

0[)portunity  of  cross-examination,  id. 

in  presence  of  magistrate,  73 

should  be  fully  taken  and  returned,  id. 

signature,  75 

by  witness  and  magistrates,  id. 

signatures  need  not  be  proved,  id. 
for  what  purposes  available,  76 
mav  be  used  before  grand  jury,  id. 
admissible  thougli  charge  not  technically  the  same,  id. 
prisoner  entitled  to  copies  of,  77 
wlieu  he  is  so  entitled,  id. 
>         whether  he  is  entitled  to  copy  of  his  own  examination,  id. 
semi/e  judge  may  order  it  to  be  given,  id. 
taken  before  a  coroner,  id. 

generally  subject  to  same  rules  as  depositions  before  a  magistrate,  78 

whether  prisoner  must  be  present,  id. 

opinions  of  text-writers,  id. 

signature  not  required  but  desirable,  79 

prisoner  not  entitled  to  copies  of,  id. 

but  judge  may  direct  them  to  be  given,  id. 

sent  before  grand  jury,  id. 
taken  in  India  id. 
in  foreign  state,  80 
by  consent,  in  misdemeanor,  id. 
under  Merchant  Shipping  Act,  id. 
cross-examination  as  to  contents  of,  67,  143 
informally  taken,  refreshing  memory  by,  64, 146 
how  far  conclusive  in  indictment  for  perjury,  828 

DETAINER,  FORCIBLE, 
proof  of,  536 


1284  INDEX. 

DICE.     See  Cards. 

DIRECTORS  OF  PUBLIC  COMPANIES.     See  Public  Companies. 
otleuces  by,  891 

DIRECTOR  OF  PUBLIC  PROSECUTIONS^  _ 

fiat  of,  on  prosecutions  for  newspaper  libel,  705 
restitution  of  stolen  property  in  prosecutions  by,  233 
duties  of,  under  Corrupt  Practices  Act,  31G,  347 

DISCHARGE  OF  JURY, 
when  allowed,  222 

DISCPIARGE  OF  PRISONERS,  230 

DISCLOSURE 

by  informers,  privileged,  157 

meaning  of  the  term,  281 

compulsory,  whether  admissible  as  a  confession,  52,  151,  161,  281,  993 

agents,  bankers,  factors,  etc.,  when  not  liable  to  be  prosecuted  after,  162,  281 

other  offences  not  indictable  after,  830,  993 

of  stolen  wills,  993 

DISORDERLY  HOUSES,  821,  823 

DISSECTION  OF  DEAD  BODIES, 
when  lawful,  446 

DISSENTING  CHAPEL.    See  Meeting-House. 
marriages  in.  ■  See  Bigamy. 

DISTURBING  PUBLIC  WORSHIP,  450 

DIVIDEND, 

fraudulently  receiving,  546 

DIVIDEND  WARRANTS, 

making  false,  547 

DIVINE  WORSHIP, 

disturbing,  450 

place  of,  breaking  and  entering,  453,  950 
place  of,  riotously  demolishing,  924 
place  of,  setting  tire  to,  285,  291 

DIVISIBLE  AVERMENTS.    See  Indictment. 

DOCKS, 

injuries  to,  952 


stealing  from,  956 

setting  tire  to  buildings  belonging  to.  285 


DOCTOR.     See  Surgeon,  Medical  Wihiess,  Physician. 
evidence  of  answers  to  inquiries  by,  32 
inducement  to  confess  by,  47 
whether  he  must  be  called  to  prove  condition  of  absent  witness,  70 

DOCUMENTS 

lost  or  destroyed,  secondary  evidence  of,  8 

in  the  hands  of  adverse  party,  9 

notice  to  produce,  10.     See  Evidence. 

presumed  to  be  correctly  dated,  17.     See  Presumption. 

inspection  of,  by  prisonerj  110 


INDEX.  1285 

DOCUMENTS— corKmwed. 

official,  how  proved,  l(!o,  lfi4 
public,  proof  of,  J  63,  164,  168 

exam  illation  of  prisoner.     See  Title. 

acts  of  parliament,  167 

acts  of  state  and  records,  168 

judicial  proceedings  in  foreign  states,  etc.,  164 

apothecary's  certificate,  165 

in  Ireland,  id. 

in  the  colonies,  id. 

certificate  of  conviction  or  acquittal,  165,  167 
of  trial  in  cases  of  perjury,  166 

copies  and  extracts,  13,  164,  165,  167, 169 

proclamations,  etc.,  164 

incpiisitions,  169 

verdicts,  170 

affidavits,  id. 

proceedings  in  equity.  171 

depositions  at  law  and  in  chancery,  id. 

bankruptcy  proceedings.    See  Bankruptcy. 

of  inferior  courts,  172 

of  probate,  id. 

foreign  laws,  173 

public  books,  id. 

examined  copies  of,  id. 

bankers'  books,  174 

registers,  id. 

ancient  documents,  176 

seals,  163,  176 
private,  attest' ng  witness,  176 

when  waived,  177  « 

evidence  of  handwriting,  id. 

proof  of  execution  when  dispensed  with,  179 
stamps,  180 

subpo?na  rfuccs  tecum  io  produce,  109.     See  Subpcena. 
which  are  evidence,  forgery  of,  546 

made  evidence,  forgery  of  seal,  stamp,  or  signature  of,  164,  1G6,  563 
forgery  of  seal,  stamp,  or  signature  of  document,  164,  16(),  562,  563 
issued  by  officers  of  courts  or  banks  of  England  or  Ireland,  forgery  of,  557 
how  to  be  described  in  indictments  for  forging  and  uttering,  591 
of  no  intrinsic  value,  larceny  of,  684 
of  title,  concealing,  422 
of  title,  stealing  or  destroying,  992 
of  title  to  lands,  meaning  of  term  in  Larceny  Act,  640 

DOGS. 

stealing,  451 

having  possession  of  stolen,  it?. 

taking  money  to  restoie,  id. 

not  an  indictable  offence,  obtaining  by  false  pretences,  451,  516 

not  subject  of  larceny,  id.,  528 

DOORS. 

proof  of  breaking,  360 

when  constable  justified  in  breaking,  798  , 

'      DOUBT,  17 

DRAWING 

bill  of  exchange,  etc.,  without  authority,  554 

DRIVING, 

furious,  596 

death  caused  by  negligent,  732 


1286  INDEX. 

DROWN, 

attempts  to,  with  intent  to  murder,  809 

DRUGS.     See  Poison,  Abortion. 

administering  to  procure  abortion,  274 
witli  intent  to  commit  indictable  oflence,  872 
administering  to  cattle,  390 

DRUNKENNESS, 

whether  an  excuse  for  murder,  782 
as  excuse  for  crime  generally,  1009 

DUCKING  STOOL,  825 

DUELLING, 

killingby,  724,  787 

DUMB  PERSON, 

competent  witness,  117 
prisoner,  how  dealt  with,  19S 

DWELLING-HOUSE, 

proof  of  breaking.     See  Burglary. 

proof  of  entering.     See  Burglary. 

setting  tire  to,  285 

meaning  of  term  "  house,"  in  arson,  290 

what  constitutes,  in  burglary,  3U7 

what  constitules  part  of,  359 

what  constitutes  in  housebreaking,  452 

breaking  and  entering  and  committing  felony  thereon,  id. 

breaking  and  entering,  with  intent  to  commit  felony,  453 

breaking  out  of,  id. 

stealing  in,  to  value  of  5L.  id. 

stealing  in,  with  menaces,  id. 

what  amounts  to  stealing  in,  id. 

proof  of  stealing  to  the  amount  of  5Z.,  id.,  454 

taking  fish  in  water  adjoining,  528 

blowing  up  or  attempting  to  blow  up,  484 

riotously  demolishing,  924,  927 

DYING  DECLARATIONS, 
evidence  of,  33 

declarant  must  have  been  competent,  id. 
but  may  have  been  partlceps  crimlnis,  id. 
confined  to  cases  of  homicide,  id. 

only  admissible  when  made  under  impression  of  impending  dissolution,  34 
when  that  impression  exists,  id. 
interval  of  time  between  declaration  and  death,  37 
admissibility  of,  question  forjudge,  id. 
where  reduced  into  writing,  38 
degree  of  credit  to  be  given  to,  id. 
evidence  in  answer  to,  39 

DYNAMITE.    See  Explosives. 


EAST  INDIES, 

forgeries  of  securities  raised  under  statutes  relating  to,  47 

EAVES-DROPPING,  824 

EGGS, 

larceny  of,  526 


INDEX.  ^  1287 

ELECTION,  205 

in  niisdemeanor,  207 

time  for  ajjplication,  id. 

under  the  Explosive  Substances  Act,  id. 

in  eiiibe/.iilenient,  459,  SUi 

in  ofl'ences  against  Game  Acts,  COS 

in  larceny,  641 

in  indictments  for  receiving,  918 

ELECTIONS.     See  Bribenj,  Corrupt  Practice. 
bribery  at,  843 
ofiences  at,  id.,  456 

frauds  on  nomination  or  ballot  papers,  456 
election  poll,  carrying  arms  near,  id. 
corrupt  withdrawal  of  election  petition,  457 
municipal  elections,  id. 
false  declarations  at,  490 
personation  at,  345,  494 

EMBEZZLEMENT, 

evidence  to  explain  motives  and  intention,  101 

particulars  in,  194,  478 

by  clerk  or  servant,  458 

by  persons  in  the  Queen's  service,  459 

by  constables  or  police,  id. 

venue  in,  id.,  473 

form  of  indictment  in,  id. 

tiiree  acts  of,  within  six  months  may  be  charged  together,  id. 

description  of  property,  4H0,  478 
when  part  of  the  money  is  to  be  returned,  460 
summary  jurisdiction,  id. 

by  officers  of  tlie  Bank  of  England  or  Ireland,  461,  478 
of  property  of  trade  union.     See  Larceny. 

of  partners.     See  Larceny. 
of  warehoused  goods,  461 
by  officers  of  savings  banks,  id. 
of  post  letters.     See  Post- Office 
woollen,  (lax,  mohair,  etc.,  i<^. 
falsification  of  accounts,  462 
general  intent,  need  only  be  stated,  id, 
by  whom,  may  be  committed,  id. 

general  cases,  id. 

officer  not  servant,  463 

servant  of  illegal  society,  id. 

employment  to  do  one  act  only,  464 

agent  not  servant,  id. 

part-owners  and  sharers  in  profit,  466. 

persons  employed  by  several,  467. 

in  whose  employment,  468. 

persons  in  the  Queen's  service,  470 

officers  of  Bank  of  England  or  Ireland,  478 
for  or  on  account  of  his  master,  470 

money  need  not  now  be  received  by  virtue  of  employment,  id, 
nature  of  offence  of,  471 
distinction  between,  and  larceny,  472,  647 
proof  of,  473 
venue,  id.,  459. 

at  what  time  offence  of,  committed,  id. 
where  a  claim  is  set  up,  though  unfounded,  475 
absconding,  evidence  of,  id. 

particularity  witli  which  crime  must  be  alleged,  I'c^. 
particulars  of  the  embezzlement,  478 
proof  of  tiie  thing  embezzled,  id. 
conviction  for,  on  indictment  for  larceny,  82,  460,  643 


1288  INDEX. 

EMBEZZLEMENT— con/mwerZ. 

conviction  for  lurceny  on  indictment  for,  82,  460,  (543 

distinction  between  larceny,  obtaining  by  false  pretences,  and,  472,  684 

by  oilicers  of  public  companies,  891 

by  trustees,  987 

EMBRACERY,  721 

EMPLOYMENT, 

what  constitutes,  for  purposes  of  embezzlement,  462  et  seq. 

ENGINES, 

destroying  or  damaging,  717 
used  in  mines,  injuries  to,  744 
worked  by  steam,  nuisances  by,  819 
riotously  demolishing.    ISee  liiot. 

ENGRAVING, 

plate  for  forging  bank  securities,  551 

plate  for  forging  foreign  bills,  552 

venue  in,  id. 

description  of  instruments  in  indictments  for,  560 

bank  notes,  proof  of,  572 

ENTRY, 

proof  of,  in  burglary,  366 

constructive,  367 

forcible,  proof  of,  536 

proof  of,  in  offences  against  Game  Acts,  600 

ERROR, 

writ  of,  233 

court  of,  may  amend  proceedings,  227,  236 

defendant  in  misdemeanor  to  enter  into  recognizances,  234 

court  of,  may  pronounce  judgment,  id. 

ESCAPE. 

by  party  himself,  480 

party  must  be  in  criminal  custody,  id. 

how  criminal  custody  proved,  id. 

suffered  by  an  ofhcer,  id. 

proof  of  arrest,  481 

arrest  must  be  lawful,  id. 

voluntary  escape,  id. 

re -taking,  id. 

negligent  escape,  482 

re-taking,  id. 

from  tiie  custody  of  a  private  person,  id, 

punishment  of,  483 

EVIDENCE.    See  also  Admmibility  of,  Admission,  Hearsay,  Presumptions. 
general  rules  as  to,  the  same  as  in  criminal  cases,  1 
best,  must  always  be  jiroduced,  id. 
chattel,  production  of,  2 

written  instruments,  contents  of,  must  be  proved  by  production,  2 
in  what  cases  rule  as  to  production  of  written  instruments  applies,  2,  3. 

policy  of  insurance  against  tire,  3 
proceedings  in  county  court,  id. 
proceedings  in  courts  not  strictly  of  record,  id. 

date  of  conviction,  id.     See  Previous  Conviction. 
in  what  cases  rule  as  to  production  of  written  instruments  does  not  apply,  id. 

agreement  not  signed,  id. 

payment,  4 

notes  of  conversation,  id. 

notes  of  evidence,  id. 

marriage,  id. 


INDEX.  1289 

EVIDENCE— co?i<»i««/. 

where  there  arc  niiiltipHcate  originals,  4 
all  docimients  |>riiiteil  at  same  time  are  equally  originals,  id. 
resolulions  of  [jublic  meetings,  how  proved,  id. 
handwriting,  how  proved,  5 

comparison  of,  how  far  allowed,  6 

negative  evidence  of  consent,  id. 
want  of  consent  by  tiiird  person  to  act  of  prisoner,  how  proved,  /(/. 

appointment  of  oillcers  and  persons  acting  in  public  capacity,  id. 

admissions  by  party,  7 
secondary  evidence,  when  admissible,  8 

lost  documents,  id. 

wiiat  search  necessary,  id. 

answers  to  inquiries,  id. 

documents  in  tlie  hands  of  adverse  party,  9 

after  notice  to  produce  documents,  id. 

when  notice  to  produce  dispensed  with,  10 

policy  of  insuran(  e  against  lire,  icZ. 

not  necessary  when,  id. 

when  document  in  court,  11 

form  of  notice  to  produce,  id. 

no  particular  form  necessary,  id. 

on  whom  to  be  served,  and  when,  id. 

must  not  be  on  Sunday,  12 

consequences  of  notice  to  produce,  ?(7. 

stamp  presumed  on  document  not  produced,  id.     See  Presumption. 

privileged  communications,  id.     See  Frivilege. 

d(jcuments  which  it  is  physically  inconvenient  to  produce,  13 

placaids,  banners,  etc  ,  id. 

inscriptions  on  a  monument,  id. 

public  documents,  id.     See  Pvblic  Documents.  , 

admissiliility  of,  question  forjudge,  id. 

copies,  id- 

copies  of  copies,  14 
what  proi)er  to  tlie  issue,  81 

substance  of  the  issue  must  be  proved,  87.     See  Indictment. 
must  be  confined  to  the  issue,  92 
which  discloses  other  ofiences  admissible,  tcL 
what  applicable  to  issue,  i'/. 

of  other  transactions  closely  connected  with  that  under  inquiry,  I'tZ. 
of  several  transactions  all  forming  one  act,  93 
to  explain  motives  and  intention,  94 

for  wbat  purpose  admissible,  id. 

conspiracy,  id. 

uttering  forged  instruments  or  counterfeit  coin,  95 

receiving  stolen  goods,  98 

in  other  cases,  99 

only  admissible  where  intent  equivocal,  id. 

in  obtaining  by  false  pretences,  100.     See  False  Pretences. 
embezzlement,  101.     See  Embezzlement. 
arson,  102.     See  Arson. 
of  character,  id. 

of  prisoner,  102 

of  witness,  103 

particular  facts  cannot  be  proved,  id. 
used  for  the  purpose  of  contradiction  only,  104 

credibility  of  witness  cannot  be  impeached  by  evidence  of  particular  facts,  id. 
except  by  showing  that  he  is  not  impartial,  id. 
to  contradict  party's  own  witness,  105 
to  confirm  party's  own  witness,  id. 
cannot  be  taken  by  consent  in  felony,  140 
in  misdemeanor  it  may,  id. 

but  only  by  consent  of  defendant  or  his  counsel,  id. 
rebutting  evidence,  220 
forgery  of,  55G,  563 


1290  INDEX. 

EXAMINATION  OF  PKISONER, 

under  the  11  i^  12  Viet.,  c.  42,  s.  18,  59 

object  of  doable  caution,  60 

oath  to  be  administered,  id. 

inadmissible  ii"  taken  on  oath,  id. 

aiiter  if  tai^en  on  anotiier  inquiry,  id. 

before  coroner,  61 

how  far  admissible  if  not  returned,  id. 

statements  made  by  tlie  prisoner  during  the  examination  of  witnesses,  id. 

wliat  ougiit  to  be  taken  down,  63 

j)risoner  may  prove  omissions,  id. 

mode  of  taking,  id. 

signature,  id. 

not  absolutely  necessary,  id. 

ettect  of  it,  64 
when  informal,  refreshing  memory  by,  id. 
how  proved,  65 
when  return  conclusive,  id. 
alterations  and  erasures  in,  id. 
not  evidence  for  prisoner,  id. 
statements  at  trial  when  defended  by  cotinsel,  220 

EXAMINED  COPIES, 

of  public  documents,  165,  169 
admissible,  id. 
officer  giving  false  copy  guilty  of  misdemeanor,  165 

EXCHEQUER, 

imitating  paper,  etc.,  used  for  securities  of,  548 

making  or  possessing  materials  for  forging  securities  issued  by,  id. 

forging  of  securities  issued  by,  id. 

EXCHEQUER  BILLS, 

forgery  of,  548 

EXCISE.     See  Smuggling. 

venue  of  offences  relating  to,  966 
forgeries  relating  to,  564 

EXCOMMUNICATED  PERSONS, 
are  competent  witnesses,  124 

EXECUTORS, 

when  property  may  be  laid  in,  688 

EXPENSES  OF  WITNESSES.     See  Witnesses,  Costs. 

EXPLOSIVES, 

injuries  by,  484 

blowing  up  dwelling-house  and  other  buildings,  td. 

blowing  up  with  intent  to  murder,  id. 

placing,  near  buildings,  id. 

placing,  near  ships,  485 

injuries  to  persons  by,  id. 

sending  or  throwing,  id. 

making  or  having  possession  of,  486 

proof  of  malice  unnecessary,  id. 

persons  endangered,  id. 

proof  of  explosive  substance,  id. 

Explosive  Substances  Act,  1875,  id. 

Explosive  Substances  Act,  1883,  487 

husband  and  wife  competent  witnesses,  130,  488 

accused  admitted  to  give  evidence,  130 
privileges  of  witnesses,  151 


INDEX.  1291 

EXPLOSIVES— fon/m«cd. 

accessories  pniiisliiible  ns  jirincipals,  180,  4S8 

election  as  to  counts  in  llie  indictment,  207 

causing  exi)losion  likely  to  endanger  life  or  injure  i>roperty,  487 

making  or  having  possession  of  explosives  with  intent,  id. 

providing  materials,  488 

interpretation  of  terms,  id. 

injuries  by  persons  in  possession  of  property,  id. 

indictment,  id. 

nuisance  by  kee[)ing,  818 

EXPRESS  MALICE,  783 

EXTORTION,  833 

EXTRADITION,  258 


FACTOR, 

embezzlement  by,  278.    See  Agent. 
definition  of  terms,  280 

FALSE  ACCOUNTING.    See  Embezzlement. 

FALSE  AFFIRMATION, 
perjury  on,  123,  844 

FALSE  COPIES  OF  RULES  OF  TRADE  UNIONS.    See  Trade  Unions. 

FALSE  DECLARATIONS.    See  Perjury. 
at  parliamentary  elections,  490 
at  municipal  elections,  id. 
before  magistrates,  id. 

on  registration  of  births,  deaths,  and  marriages,  491 
on  registration  of  deeds,  id. 
in  matters  relating  to  customs,  492 
in  bankruptcy,  id. 
in  other  cases,  id. 

FALSE  PERSONATION.    See  Forgery. 
at  common  law,  493 
by  statute,  id. 
of  bail,  id. 

of  soldiers  and  seamen,  id. 
of  voters,  345,  494 
of  owners  of  real  estate,  495 
of  owners  of  stock,  496,  570. 

FALSE  PRETENCES, 

evidence  to  explain  motives  and  intention,  100 
obtaining  money,  etc.,  by,  497 

prisoner  may  be  convicted  of  obtaining  by,  though  facts  amount  to  larceny,  83, 
498,  503,  684 

but  not  if  indicted  for  larceny,  084 

or  though  facts  amount  to  forgery,  503 
difference  between  obtaining  goods  by,  and  laneny.  n/. 
difference  between  larceny,  embezzlement,  and  obtaining  by,  GS4 
form  of  indictment,  498,  522 

intent  to  defraud  particular  person  need  not  be  proved,  498,  521 
causing  money  to  be  delivered  by,  498,  602 
inducing  persons  by,  to  execute  deeds,  etc.,  498 

to  accept  bills  of  exchanj^e,  etc..  id. 
preferring  indictments  for  obtaining  by,  id. 


1292  IXDEX. 

FALSE  PRETENCES— con/mwed 
what  is  an  obtaining,  4*Ji) 

obtaining  as  a  loan,  id. 

on  obtaining  credit  by,  id.,  318,  499.     See  Bankruptcy, 

of  having  an  interest  in  hind  or  money,  500 

goods  obtaine(i  as  a  h)an,  id. 

obtaining  ninst  be  caused  by  the  false  pretence,  501 

constructive  obtaining,  502 

obtaining  amounting  to  larceny,  503 

amounting  to  forgery,  id. 
existing  fact,  id. 

of  some  future  transaction,  id. 

of  having  power  to  do  an  act,  504 

combination  of  severid  false  statements,  id. 

of  being  entitled  to  m;iint:iin  an  action,  id. 

of  being  an  unmarried  m;in,  id. 

of  intention  to  marry,  505 

proof  of  one  statement  sufficient  if  material,  506 
acts  not  words,  id.  *•• 

by  assuming  a  false  character,  id. 

by  giving  a  cheque  without  etiects,  507 

by  sending  half  bank  note,  508 

by  giving  a  flash  note,  id. 
overcharge,  509 
of  having  delivered  goods,  510 
as  to  quality  in  course  of  a  contract,  511 

difference  between,  and  simple  commendation,  512,  513 
as  to  quantity  or  weight,  513 
conmion  prudence  on  part  ()f  prosecutor,  514 
pretences  obviously  false,  id. 
nature  of  the  property  obtained,  515 

cliattel,  money,  or  valuable  security,  id. 

thing  obtained  need  not  exist  at  time  of  pretence,  516 
no  offence  to  obtain  dog  by,  id. 
proof  of,  being  made.  517 
proof  of  the  falsity,  519 
evidence  confined  to  the  issue,  520 
proof  of  intent  to  cheat  or  defraud,  521 
intended  repayment  no  defence,  id. 
proof  of  ownership,  522 

pretence  to  one,  money  obtained  from  another,  id. 
through  innocent  ngent,  523 
proof  of  ail  being  principals,  id. 
obtaining  bounty  money  by,  525 
description  of  property.     See  Larceny. 
venue  in  indictment  for  oV)taii)iiig  by,  id. 
receiving  goods  obtained  by,  907 

FALSE  SIGNALS, 
exhibiting,  957 

FALSE  TOKENS, 

offence  of  using,  395 

FALSIFICATION  OF  ACCOUNTS,  462 

FALSUM  IN  UNO,  FALSUM  IN  OMNIBUS,  106 

FARM  BUILDINGS, 

setting  fire  to,  285 

FELO  DE  SE,  806 


INDEX.  1293 

FELONY, 

no  acqiiittnl  for  misdemeanor  though  facta  amount  to,  82 
no  conviction  for  misdemeanor  wlien  felony  negatived,  84 
apprehension  of  persons  suspected  of,  202,  26'1 
assault  witii  intent  to  commit,  3U2 
Com])Ounding,  41!) 
misprision  of,  420 

entering  dwelling-house  with  intent  to  commit,  453 
larceny  of  goods  of  persons  convicted  of,  property  how  described,  086 
in  cases  of  indictment  for,  by  poisoning,  parties  may  be  convicted  of  misde- 
meanor, 873. 

FE3rE  COVERT,    ^qq  Husband. 

FERJE  NATURJE, 

larceny  of  animals,  526 
what  are  such,  id. 

larceny  may  be  committed  of  them  when  dead,  id.,  527 
or  wlien  tamed,  id. 
not  if  kept  for  pleasure  only,  id. 

FERRETS, 

not  subject  of  larceny,  528 

FIGHTING, 

death  caused  by,  727 
challenging  to  tight,  392 

FINDING, 

larceny  of  goods  obtained  by,  675 

FINES  AND  SURETIES, 

may  be  taken  in  addition  to  or  in  lieu  of  punishment,  230 

FIREARMS.    See  also  Shooting. 
discharging  at  any  person,  301 
definition  of,  id. 
pointing,  an  assault,  304 
introducing  into  house,  an  entry,  366 
discharging  into  house,  an  entry,  367 
negligent  use  of,  730 

FIREWORKS.     See  Explosives. 
negligent  use  of,  726 

FISH, 

taking  or  destroying,  528,  529 

larceny  may  be  committed  of,  if  in  a  tank  or  stew,  id.,  526,  529 

oysters,  stealing  or  dredging  for,  530 

poisoning,  873 

FISH  PONDS, 

injuries  to,  952 
salmon  fishery,  953 

FIXTURES, 

proof  of  breaking,  in  burglary,  863 
larceny  of,  532 

cutting  or  severing  glass,  woodwork,  lead,  etc.,  fixed  in  any  building,  533 
wiiether  necessary  to  lay  property   in  any  person  in  indictment  for  larceny 
of,  id. 

FLIGHT, 

as  evidence  of  crime,  19,  751 


1294  INDEX. 

FLOGGING.    See  Vndppiag. 

FOOD.     See  Adulteration. 

FORCIBLE  DETAINER, 
offence  of,  535 

FORCIBLE  ENTRY, 
offence  of,  535 

FOREIGN   BILLS,  .  ,    ,     ^      .      ^     .      ,.,,     -^o 

engraving  or  having  materials  for  forging  foreign  bills,  obZ 

FOREIGN   COIN, 

counterfeiting  and  importing.     See  Coin. 

FOREIGN  COUNTRY, 

proof  of  warrants  and  depositions,  80 
manslau,a;hter  committed  in,  258 
murder  in,  id. 
proof  of  marriage  solemnized  in,  333,  337 

FOREIGN  DOCUMENTS, 

forging,  552  . 

FOREIGN   LANGUAGE, 
libel  in,  704 

FOREIGN  LAW, 

examination  of  skilled  witnesses  as  to,  148 
proof  of,  173,  337 
of  marriage,  333,  337 

FOREIGN  MARRIAGE, 
how  proved,  330,  337 

FOREIGNER, 

trial  of,  212 

conspiracy  to  murder,  436  ♦ 

libel  on,  indictable,  700 

when  he  may  be  tried  for  piracy,  870 

FORFEITURE, 

liability  to,  as  a  ground  of  privilege,  149 

FORGED  INSTRUMENTS, 
demanding  property  on,  558 

FORGERY, 

evidence  of  intention  in  uttering,  95 

prisoner  not  to  be  acquitted  of  obtaining  by  false  pretences,  because  ofTence 

amounts  to,  503 
at  common  law,  542 

no  difference  between  public  and  private  documents,  543 
trade-marks,  543,  563 
her  Majesty's  seals,  544 

transfers  of  stock  or  other  public  funds,  544,  569 
transfers  of  stock  in  public  company,  id. 
powers  of  attorney  relating  to  stock  or  funds,  546 
false  entries  in  books  of  public  funds,  547 
false  dividend  warrants,  id. 
East  India  securities,  id. 


INDEX.  1295 

TORGEBY—conthiued. 

exchequer  bills,  bonds,  etc.,  548 

bank  notes  and  bills,  549,  557,  570 

making  or  having  possession  of  plates,  paper,  etc.,  548,  549,  550 

engraving  plates  or  paper,  etc.,  551 

engraving  a  note,  551,  572 

making  a  note,  551 

deeds,  553,  572 

bonds,  553 

wills,  553,  573 

bills  of  exchange  and  promissory  notes,  id. 

bills  unstamped,  569,  574 

warrant,  order,  etc,  for  payment  of  money,  554,  577 

receipt,  554,  581 

warrant,  order,  etc.,  for  delivery  of  goods,  554,  583 

obliterating  crossings  on  cheques,  554 

debentures,  555 

process  or  proceedings  of  courts,  555,  584 

documents  made  evidence,  556 

court  rolls,  id. 

register  of  deeds,  id. 

orders  of  justices,  recognizances,  affidavits,  etc.,  557 

documents  issued  by  officers  of  courts,  id. 

documents  issued  by  officers  of  banks  of  England  and  Ireland,  id. 

marriage  license  or  certificate,  id. 

demanding  money  on  forged  instruments,  558 

destroying,  altering,  or  forging  registers,  557,  584 

transmitting  false  copies  of  register  to  registrar,  558 

giving  false  certificate  of  birtlis,  etc.,  id. 

of  foreign  bill  of  exchange,  and  other  foreign  documents,  559. 

venue  in, 560 

description  of  instruments  in  indictments  for,  id. 

proof  of  intent  in,  id.,  589 

meaning  of  term  "possession"  in  offences  connected  with,  561 

punishment  of,  under  statutes  not  repealed,  id. 

principals  and  accessories  in,  proceedings  against,  562,  593 

seal,  stamp,  or  signature  of  public  documents,  562 

seal,  stamp,  or  signature  of  documents  made  evidence,  763 

trade-marks,  id. 

Government  securities,  id. 

in  other  cases,  id. 

stamps,  5G4,  669 

non-parochial  registers,  564 

documents  relating  to  army  and  navy,  id. 

documents  relating  to  customs,  id. 

contracts  relating  to  land  tax,  id. 

name  of  accountant-general  in  Chancery,  id. 

certificate  of  former  C(mviction,  id. 

certificate  under  Birtlis  and  Deatlis  Registration  Act,  id. 

documents  relating  to  slave  trade,  id. 

matters  relating  to  the  post-office,  id. 

matters  relating  to  stage  and  hackney  carriages,  id. 

documents  under  Explosive  Substances  Act,  id. 

certificate  under  Sale  of  Food  and  Drugs  Act,  id. 

records,  565 

nomination  and  ballot  papers,  id. 

seal  of  municipal  corporation,  id. 

entry  or  alteration  on  registry  of  land,  id, 

under  Sea  Fisheries  Act,  565 

what  amounts  to,  id. 

alteration  of  document,  id. 

by  indorsement,  id. 

credit  need  not  be  gained  by,  566 

by  using  a  person's  own  name.  id. 


1296  INDEX. 

FO'RGETiY— continued. 

what  nniounts  to — continued. 

by  using  a  fictitious  name,  566. 
by  using  an  assumed  name,  id. 

offence  of,  complete,  though  document  imperfect,  569 
proof  of  forging  transfer  of  stock,  id. 

personating  owner  of  stock,  570 
engraving  part  of  a  note,  572 
making  a  note,  id. 
forging  wills,  573 

bills  of  exchange,  id. 

undertakings,  etc.,  for  the  payment  of  money,  677 
receipts,  581 

warrants,  etc.,  for  the  delivery  of  goods,  583 
destroying  registers,  584 
forging  county  court  process,  id. 
uttering,  disposing  of,  or  putting  off,  585 
intent  to  defraud,  587 
some  one  to  be  defrauded,  589 
falsity  of  instrument,  id. 
form  of  indictment,  591 
who  are  principals,  593 
who  are  accessories,  id. 
proof  of  guilty  knowledge,  594 
venue,  id. 

FOEMAL  DEFECTS, 

in  indictment,  objection  how  taken,  209 

FOKMER  CONVICTION.    See  Previous  Conviction, 

FORNICATION,  899 

FEAUD, 

consent  obtained  by,  271,  899 

possession  or  property  obtained  by,  655,  662 

taking  documents  witli  a  fraudulent  purpose,  992,  99<j 

FEEEHOLD, 

larceny  cannot  be  committed  of  that  which  belongs  to  tlie,  532 
unless  it  be  served  by  a  separate  act,  id. 

FEIENDLY  SOCIETIES, 

larceny  of  property  of,  646,  680 
embezzlement  of  funds  of,  id. 

FEUIT  TREES, 
injuries  to,  984 

FUNDS, 

making  false  entries  in  books  of  public,  547 
forgeries  relating  to  public,  544,  5G9 
personating  owner  of  stock  in,  546,  570 

FUEIOUS  DRIVING, 
injuries  caused  by,  596 
death  caused  by,  596,  732 

FUEZE, 

setting  fire  to,  286 

GAME, 

when  subject  of  larceny,  526 

offences  relating  to,  597 

taking  or  killing  by  night,  iV^ 

apprehension  of  offenders  against  laws  relating  to,  598,  60 


INDEX.  1297 


GAME — continued. 

limitation  of  time  for  prosecutions  relating  to,  598,  602 

previous  convictions,  how  proved,  599 

three  persons  entering  laud  by  night  armed  in  pursuit  of,  id. 

definition  of  night,  id. 

definition  of  game,  id. 

destroying,  on  public  road,  id. 

taking  or  killing,  how  proved,  600 

entry  for  purpose  of  taking,  how  proved,  id. 

proof  of  situation  and  occupation  land,  601 

proof  of  being  armed  in  pursuit  of,  602 

joinder  of  olliences,  603 

GAMES, 

death  caused  in,  726 

GAMING, 

unlawful  and  fraudulent,  607 
winning  money  by  fraudulent,  id, 

GAMING-HOUSE  KEEPING,  607,  821 

GAKDENS, 

malicious  injuries  to  plants  in,  983 

GAKOTTING,  301.    And  see  Robbery. 

GAZETTE, 

proof  of  notice  in,  173,  320 
proof  of  proclamation  in,  166 

GESTATION, 

presumption  of  period  of,  19 

GIEL, 

abduction  of,  268.     See  Abduction. 

indecent  assault  on,  303,  310 

carnally  knowing,  under  twelve  years  of  age,  897,  904 

carnally  knowing,  between  twelve  and  thirteen  years  of  age,  id. 

procuring  defilement  of,  under  twenty  one  years  of  age,  897 

proof  of  age,  272,  903 

GIVING  IN  CHAEGE  OF  PRISONEK,  217 
where  there  is  a  previous  conviction,  224 

GLEANERS, 

larceny  by,  674 

GOODS, 

■  forgery  of  warrant,  order,  etc.,  for  delivery  of,  554,  583 
setting  fire  to,  in  a  building,  286,  294 

GORSE, 

setting  fire  to,  286 

GOVERNMENT, 

embezzlement  by  persons  in  service  of  the,  459 
larceny  by  servants  of,  643 
libel  on,  indictable,  697 
stores.     See  Naval  Stores. 

GOVERNMENT  SECURITIES, 

forgery  of,  544,  569.     See  Exchequer  Bills. 

GRAIN, 

setting  fire  to  crops  of,  284 

assault  with  intent  to  obstruct  sale  of,  302 

82 


1298  INDEX. 

GRAND  JURY, 

whiit  inclictments  may  be  preferred  before,  191 

proceedings  before,  id. 

foreman  to  swear  witnesses,  id. 

■wliat  evidence  necessary,  id. 

bill  not  to  be  ignored  by,  on  tbe  ground  of  insanity,  192 

how  accomplice  in  custody  taken  before,  131 

RIEVOUS  BODILY  HARM, 

statutes  relating  to,  609 

proof  of  doing,  id. 

proof  of  intent,  610 

distinction  between  motive  and  intent  in,  id. 

may  be  found  guilty  of  unlawfully  wounding  on  indictment  for,  612 

causing,  with  intent  to  murder,  809 

GUARDIANS  AND  OVERSEERS, 
prosecution  for  assaults  by,  635 

GUEST, 

of  hotel,  when  guilty  of  burglary,  374 
occupation  of  house  hy,  in  burglary,  380 

GUILTY, 

plea  of,  plenary  judicial  confession,  40 

GUILTY  KNOWLEDGE.     See  also  Intent. 
proof  of,  in  conspiracy,  94 

in  forging  and  uttering,  95,  594: 

in  abduction,  272 

in  receiving,  98,  907,  918 

in  taking  lish,  unnecessary,  529 

in  other  cases,  99 

GUNPOWDER.     See  Explosives,  Nuisance. 


HABEAS  CORPUS  AD  TESTIFICANDUM, 
wrii  of,  110 

liow  to  be  applied  for,  id. 
how  to  be  executed,  111 
to  bring  up  a  hmatic,  id. 

HABITUAL  CRIMINALS  ACT.    See  Preventim  of  Crimes  Act. 

HACKNEY  CARRIAGES, 

forgeries  relating  to,  564 

HANDWRITING, 

proof  of,  5,  177 

comparison  of,  how  far  allowable,  6,  178 

skilled  evidence  as  to,  179 

HARBORS.    See  Docks. 

HARES, 

taking  or  destroying.    See  Game. 

HAY, 

setting  fire  to,  286.    See  Arson. 

HEALTH, 

proof  of  answers  to  inquiries  as  to,  31 
nuisance  by  injuries  to,  816,  818,  824 


INDEX.  '    1299 

HEARSAY, 
'    better  called  second-hand  evidence,  25 
not  generally  admissible,  id. 

explaining  nature  of  transaction,  id. 
term  often  im|)r()perl3'  a[)plie(l,  id. 
complaint  in  cases  of  rape,  2() 
in  other  cases  of  violence,  28 
exceptions  to  rule  of  inadmissibility,  29. 

evidence  already  given  in  judicial  proceedings,  id.    See  Depositions. 

as  to  ancient  possession,  id. 

on  questions  of  pedigree,  id. 

as  to  reputation  of  public  or  general  right,  30 

statement  of  deceased  persons  against  interest,  id. 

of  statements  of  deceased  persons  made  in  the  course  of  business,  31 

statements   relating   to  the  health  or  sufleriugs  of  the  persons  who  make 

them,  id. 
answers  to  medical  inquiries,  id. 
limits  of  this  exception,  32 
dying  declarations,  33 

grounds  of  admi>sibility  of  dying  declarations,  id. 
declarant  must  iiave  been  a  competent  witness,  33 
but  may  have  been  particeps  criminis,  id. 
contined  to  cases  of  homicide,  id. 

only  admissible  when  made  under  impression  of  impending  dissolution,  34 
instances  of  that  impression,  id. 
interval  of  time  between  declaration  and  death,  37 
admissibility  of  dying  declarations  question  for  judge,  id. 
where  declarations  reduced  into  writing,  38 
degree  of  credit  to  be  given  to  dying  declarations,  id. 
evidence  in  answer  to  proof  of,  39 

HEIR, 

personating,  495. 

HEIRESS, 

abduction  of.     See  Abduction. 

HELPLESS  PERSONS, 

ill-treating,  035.     See  Manslaughter,  Murder. 

HIGH  SEAS, 

trial  of  offences  committed  on,  252,  871 
offence  of  piracy  on,  867 

HIGHWAYS, 

destroying  game  on,  599 

delivery  of  particulars  as  to  obstructions  to,  194 

particulars  of  the  highway,  194,  632 

what  are,  613. 

navigable  rivers,  id. 

ways  used  by  a  portion  of  the  public,  614 
what  is  evidence  of  dedication  of,  id. 
how  dedicated  nnder  5  &  6  Will.  4,  c.  50,  615 
which  are  not  thoroughfares,  id. 
stopped  by  justices.  616. 
set  out  by  inclosure  commissioners,  617,  626 
turning  or  diverting,  617 
evidence  of  reputation  as  to,  id. 
proof  of,  as  set  forth,  618 
proof  of  termini,  id 

proof  of  changing,  id.  > 

proof  of  nuisance,  619 

what  are  nuisances  to,  id. 

placing  carriages  in,  id. 

whole  must  be  kept  clear,  id. 


1300  INDEX, 

HIGHWAYS— confrnwed 

proof  of  nuisance — cnnfinned. 

I)loiigliiiig  up  ii  fDoipath,  fi20 

laying  down  g;is  and  watcM-  pipes,  id. 

obstructing  navigation,  iil. 

insignificant  obstructions,  nl. 

obstructions  by  wiiich  public  benefited,  621 

wiien  autborjy.ed  liy  acts  of  parliament,  622 

obstructions  by  railways,  id. 

whether  justitiable  by  necessity,  id. 

repair  of  iiouses,  628 

judgment  and  sentence,  id. 
abatement  of  niiisances.     See  Nuisance. 
indictment  for  not  repairing,  id. 
parishes  prinm  facie  liable,  id. 

what  roads  are  so  repairable,  624 

no  adoption  necessary,  625 
roads  set  out  by  inclosure  commissioners,  626 
inclosure  by  private  person,  id. 

under  act  of  parliament,  627. 
evidence  of  reputation,  30,  617,  628 
liability  to  repair  ratione  clausurce,  626 

liability  of  particular  districts  to  repair  by  custom,  627 
""  proof  of  former  convictions  evidence  in  indictments  relating  to,  628,  630 

extra-parochial  places,  id. 

liability  of  corporation  to  repair,  629 

liability  of  individuals  to  repair,  id, 

liability  to  repair  rai/one  tenurce,  id. 

individuals  only  liable  for  consideration,  id. 

not  by  prescription,  id. 

proof  of  formal  acquittal  not  evidence,  630 
parish,  how  discharged  from  liability,  id. 
district  or  private  person,  how  discharged,  631 
particulars,  632 
costs,  id. 
new  trial  633 
indictment  by  justices,  id. 
evidence  of  husband  and  wife  admissible,  129 

HOMICIDE.    See  Murder. 
justifiable,  634 
excusable,  id. 
by  misadventure,  id. 
evidence  of  dying  declarations,  in,  33 

HOPBINDS, 

injuries  to,  984 

HORSE, 

stealing,  3S9 

killing,  maining,  or  wounding,  id. 

HOT-HOUSES, 

injuries  to  plants  in,  984 

HOUSE.    See  Dwelling-house. 
setting  fire  to,  285 
meaning  of  term,  in  arson,  290 

in  burglary,  367 
when  it  may  be  broken  to  execute  process,  798 


HOUSEBREAKING.    See  Dwelling -house. 
possession  of  implements  of,  359,  387,  388 


INDEX.  1301 

HUSBAND, 

larceny  of  goods  of,  by  wife,  681  ' 

killing  adulterer,  770 

cannot  commit  rape  on  wife,  899 

bnt  may  be  accessory  to,  id. 
coercion  by,  lOlU 

HUSBAND  AND  WIFE, 

incompetent  witnesses  against  eacli  otlier,  125 

rule  (inly  applies  when  one  or  (jtlier  is  on  trial,  id. 

only  extends  to  persons  lawfully  married,  12G 

in  cases  of  treason,  127 

does  not  apply  to  c:ises  of  personal  violence  to  each  other,  id. 

how  far  it  applies  to  bigamy,  129,  328 

exceptions  l)y  statute,  id. 

privilege  of,  as  witnesses  in  questions  affecting  guilt  of  each  other,  153 

when  lialile  as  accessories,  180 

as  joint  receivers.  910 
evidence  of  being,  lOIO 
order  for  judicial  separation  in  cases  of  aggravated  assault,  229 


ICE, 

when  subject  of  larceny,  647 

IDE3I  SONANS, 
rule  of,  90 

IDENTITY  OF  PERSONS, 
proof  of,  in  bigamy,  339 

IDIOTS.     See  Insane  Persons. 

how  far  competent  as  witnesses,  118 
marriage  by,  334 

ILLNESS, 

nature  of,  to  admit  deposition,  69 

ILL-TREATING, 

servants,  035 

apprentices,  id. 

prosecution  bv  guardians,  id. 

children,  398' 

lunatics,  636.     See  also  Murder. 

IMMORALITY, 

presujuption  against,  18 

INCITING, 

to  mutiny.     See  Mutiny. 

to  commit  murder,  430 

to  commit  other  offences,  183,  186.     See  Accessories. 

INCLOSURE  COMMISSIONERS. 

setting  out  highways  by.     See  Highinuis. 

INCOMPETENCY.     See  Witnesses. 

difference  between  and  privilege  of  witnesses,  149 

INCUMBRANCES, 

fraudulent  concealment  of,  422 

INDECENT  ASSAULT,  303,  310 

INDECENT  EXHIBITIONS,  820 

INDECENT  EXPOSURE,  id. 


1302  INDEX. 

INDECENT  LIBEL,  697 

INDECENT  PUBLICATION.    See  Libel. 

INDIA, 

depositions  taken  in,  79 

INDICTMENT.     See  also  Larceny. 
Lord  Hales'  description  of,  81 
old  rules  of  construction  applicable  to,  id. 
includes  "  information"  in  Corrupt  Practices  Act,  151 
form  of,  under  14  &  15  Vict.  c.  lUO,  82 

for  felony  or  misdemeanor,  prisoner  may  be  convicted  of  attempt,  id. 
for  robbery,  prisoner  may  be  convicted  of  assault  with  intent  to  rob,  id. 
for  misdemeanor,  not  to  be  acquitted  if  fads  amount  to  felony,  id. 
for  felony,  no  conviction  for  misdemeanor,  84 
for  embezzlement,  prisoner  may  be  convicted  of  larceny,  83 
for  larceny,  prisoner  may  be  convicted  of  embezzlement,  id. 
for  jointly  receiving,  prisoneis  may  be  convicted  separately,  id. 
accessory  before  fact  indicted  as  principal,  id. 
for  child  murder  and  conviction  of  concealment  of  birth,  id. 
for  false  pretences,  no  acquittal  if  facts  amount  to  felony,  id. 
for  feloniously  WDunding,  conviction  for  unlawful  wounding,  id. 
divisible  averments,  83-86 

of  the  offence,  83 

for  murder,  prisoner  may  be  convicted  for  manslaughter,  id. 

for  burglary,  prisoner  may  be  convicted  of  larceny,  id. 

for  compound  larceny,  prisoner  may  be  convicted  of  simple  larceny,  84 

with  regard  to  the  extent  of  the  property,  id. 

sufficient  if  some  articles  of  many  be  proved,  85 

of  intent,  id. 
averments  which  need  not  be  proved,  86 

of  time,  id.,  90 

of  place,  id.,  90 

of  value,  id.,  91 

need  not  now  be  made,  id. 
effect  of  amendment  in,  86 
amendment  of.     .See  Amendment. 
substance  of  issue  raised  by,  must  be  proved,  87 
descriptive  averments,  id. 

of  property,  ho\f  proved,  id. 

of  property  of  partners,  companies,  etc.,   how  laid.     See   Partner,   Corpo- 
ration. 

of  person,  how  proved,  88 

mistake  in  name,  id. 

person  unknown,  89 

rule  of  idem  sonans,  90 

names  of  dignity,  id. 

what  evidence  of  name  sufficient,  id. 
of  time,  id. 
of  place,  id. 
of  value,  91 

mod^  of  committing  offence,  91 

names  of  children,  7")0 
evidence  must  be  confined  to  issue  raised  by,  92.     See  Evidence. 
calling  witnesses  on  back  of,  139 
prosecutor  not  bound  to  do  so,  id. 
nor  to  give  their  addresses,  id. 
judge  may  order  them  to  be  called,  id. 
right  to  cro'^s  examine  in  such  cases,  140 
how  preferred  and  found,  191 

when  not  to  be  preferred  unless  previously  authorized,  192 
count  for  previous  conviction,  193 
prisoner  not  entitled  to  copy  of,  in  felony,  194 
but  he  is  so  in  misdemeanor,  id. 


INDEX.  .1303 

INDICTMENT— con<inwed, 
particulars,  194 
jurisdiction,  195 
removal  of,  196 
special  pleas  to,  202 
autrefois  acquit,  id. 
autrefois  convict,  id. 
pardon, 205 
general  issue,  id. 
pleading  over,  id. 
joinder  of  ofiences  in  one,  id. 
election,  id. 
quashing,  208 

amendment  of,  209.     See  Amendment. 
form   of,  in  malicious  injuries  to  property,  289 

in  conspiracy,  4o() 

in  embezzlement,  459,  475 

in  explosives,  488 

for  obtaining  by  false  pretences,  498,  522 

in  indictments  for  forgery,  560,  591 

in  indictments  for  engraving,  etc.,  560 

for  oflences  relating  to  mines,  745 

in  manslaughter,  747 
means  of  death  need  n8t  be  stated,  id. 
form  of,  for  murder,  id. 

means  of  death  need  not  be  stated,  id. 
bow  child  to  be  described,  750 
wounding,  form  of,  for  attempt  to  commit  murder,  810 
form  of,  in  perjury,  662 

for  offences  relating  to  post-ofEce,  877 

for  receiving,  908 

for  sacrilege,  laid  in,  930 

for  stealing  written  instruments,  972 

for  previous  conviction,  193,  233 

INDORSEMENT, 

forgery  of,  553,  573 

obtaining  by  false  pretences,  493 

INDORSING, 

bills  of  exchange,  etc.,  without  authority,  554,  581 

INDUCEMENT. 

nature  and  effect  of,  to  exclude  confessions,  42.     See  Confessions. 
need  not  be  negatived  in  order  to  render  confession  admissible,  56 

INDUSTRIAL  SOCIETIES, 
proof  of  documents,  174 
property  of.    See  Li.rceny. 

INFAMOUS  CRIME, 

threats  to  accuse  of,  973,  978 
definition  of,  id. 

INFANCY, 

plea  of,  997 

general  evidence  under,  id. 

INFANTS.     See  Child,  Infancy. 
recognizance  by,  107 
competency  of,  as  witnesses,  115 
degree  of  credit  to  be  given  to,  117 
under  fourteen  years  of  age  cannot  commit  rape,  898 
nor  assault  with  intent  to  commit  rape,  id,  / 


1304  INDEX. 

INFIDELS, 

incompetency  of  as  witnesses,  119 

INFORMATION, 

included  in  "  indictment "  in  Corrupt  Practices  Act,  151 
compounding,  4iy 
proving,  841 

INFORMERS, 

disclosures  by,  privileged,  157 

INNKEEPER.    See  Nuisance. 

INNOCENCE, 

presumption  of,  18 

innocent  agent,  false  pretences  made  tlirough,  523 

larceny  made  through,  661 

forgery  through,  594 

INOCULATION, 

of  small-pox,  824 

INQUISITIONS, 

proof  of,  169  ^ 

INSANE  PRISONER, 

how  dealt  with,  199,  999 
judgment  upon,  230 

INSANE  WITNESS, 

deposition  of,  whether  admissible,  70 
incompetency  on  the  ground  of,  118 

INSANITY. 

incompetency  as  witness  on  the  ground  of,  118. 

plea  of,  999 

what  question  for  jury,  989,  et  seq. 

what  questions  can  be  put  to  medical  witness,  id. 

caused  by  intoxication,  1009.     See  Itunalic. 

INSCRIPTIONS. 

secondary  evidence  of,  13 
inspection  by  the  jury,  224 

INSOLVENCY.    See  Banh-uptcy. 

INSPECTION  OF  DOCUMENTS,  110 

INSTIGATING.    See  Inciting,  Accesswies. 

INSURANCE  OFFICE, 

intent  to  defraud  in  arson,  how  proved,  298 

INTENT, 

averment  as  to,  divisible,  85 
proof  of,  in  abduction,  272 
proof  of,  in  abortion,  276 
in  arson,  how  proved,  297 

to  defraud  a  particular  person  need  not  be  stated,  289 
to  commit  felony,  assault  with,  302 
to  defraud,  proof  of,  against  bankrupt,  323 
in  burglary,  382 

to  break  into  a  particular  house,  387 
proof  of,  to  injure  cattle,  391 
in  falsification  of  accounts,  462 

to  defraud  in  obtaining  by  false  pretences,  how  proved,  521 
proof  of,  in  forgery,  and  offences  connected  therewith,  587,  589 


INDEX.  1305 

ll!iTEWT— continued. 

proof  of,  in  forgery  or  uttering,  id. 

to  do  grievons  bodily  harm,  proof  of,  GIO 

proof  of,  in  libel,  710 

l)roof  of,  common  in  murder,  7G0 

to  commit  murder,  doing  acts  with,  809 

how  proved,  id. 
proof  of,  in  perjuiy,  856 

proof  of,  in  indictments  for  administering  poison,  809 
proof  of,  in  otiences  relating  to  I'ailways,  895 

INTENT  TO  DEFRAUD.    See  Intent. 
presumption  of,  24 

INTENTION, 

evidence  to  explain,  94.     See  Evidence. 

INTEREST, 

statements  against,  30.     See  Hearsay. 

INTOXICATION, 

as  an  excuse  for  crime,  782 
insanity  produced  by,  1009 

IRELAND, 

proof  of  marriages  in,  331 

ISSUE, 

nature  of,  in  criminal  cases,  81 
substance  must  be  proved  as  laid,  87 
evidence  confined  to,  generally,  92 
evidence  confined  to,  in  false  pretences,  520 

JEWS, 

oath  by,  121 

proof  of  marriages  by,  330 

JOINDER  OF  OFFENCES, 
in  one  indictment,  205 

JOINT-STOCK  BANK, 

larceny  by  shareholder  of,  644,  679 
property  of,  how  described,  690 

JOINT  TENANTS, 
larceny  by,  644,  679 

JOINT  WRONGDOERS.    See  Accessories. 

JUDGE, 

duty  of,  in  determining  questions  as  to  admissibility  of  evidence,  13 
warrant  from,  to  bring  up  witness  in  custody,  110 
whether  a  competent  witness.  130,  157 
may  order  witnesses  to  be  called,  139 

or  ask  questions,  140 

right  to  cross-examine  in  such  cases,  id. 
of  court  of  law  or  equity,  signature  of,  to  be  judicially  noticed,  164 
charge  of,  222 

duty  of,  on  trial  for  libel,  716 
power  of,  to  commit  witness  for  perjury,  862 

JUDGMENT, 

of  other  states,  169 

arrest  of,  225 

on  record  in  the  Queen's  Bench,  id. 

how  entered  where  several  ofiences  are  charged,  226 


1306  INDEX. 

JUDGUE'ST—rondnued. 

may  be  iunemled  by  writ  of  error,  227 

of  death,  228 

affidavits  in  aggravation  or  mitigation  of  punishment,  id. 

recording  jud.uinent  of  deatli,  229 

on  juvenile  ofienders,  I'c/. 

insane  persons,  230 

fines  and  sureties,  id. 

disc'Iiarge  of  prisoner,  id. 

property  found  on  prisoner,  id. 

of  foreign  or  colonial  court,  liow  proved,  164 

after  previous  conviction,  233 

JUKISDTCTION.     See  Venue. 
proof  of,  in  perjury,  836 
of  criminal  courts,  195 
quarter  sessions,  id. 
objection  to,  how  taken,  196 

JUROR.     See  Jury. 

a  competent  witness,  130 

attempt  to  bribe,  348 

who  may  serve  as,  in  indictment  for  non-repair  of  bridges,  356 

cannot  be  indicted  for  perjury  for  giving  a  false  verdict,  842 

JURY, 

de  medietate  lingua,  212 

challenge  of,  id.     See  Challenge. 

may  be  a  witness.     See  Witness. 

whether  tales  can  be  prayed  on  defect  of,  212 

court  may  order  sheriff  to  return,  id. 

who  liable  to  serve  on,  215 

persons  exem()t,  id. 

unfit  persons  may  be  ordered  to  withdraw  from,  216 

miscalling,  id. 

giving  prisoner  in  charge  to,  217 

discharge  of,  222 

in  what  cases,  id. 

delivery  of  verdict  by,  224 

inspection  by,  id. 

duty  of,  on  trial  for  libel,  716 

JUSTICE, 

cheats  affecting,  393 

libel  on  administration,  698 

JUSTICES.     See  Ilagistrates. 
forgery  of  order,  .557 
indictment  by,  in  highways,  633 

JUVENILE  OFFENDERS, 
punishment  of,  229 
in  arson,  285  et  seq.    See  also  Whipping. 


KIDNAPPING,  269 

KNOWLEDGE.    See  Guilty  Knowledge. 

KILLING  CATTLE,  389 


LAND  TAX, 

proof  of  books  of  commissioners  of,  173 
forgeries  relating  to,  564 


INDEX.  1307 

LAECENY, 

prisoner  may  be  convicted  for  embezzlement  on  indictment  for,  83,  460,  643 

prisoner  m:iy  be  cunvicled  of,  on  indictnienl  for  embezzlement,  id. 

conviction  for,  on  indictment  for  burglary,  s;^,  .'hS') 

prisoner  may  be  convicted  of  simple,  on  indictment  for  compound,  S4 

prisoner  may  be  convicted  for  false  pretences,  tliougb  facts  amount  to,  83,  503, 

598,  684 
but  if  indicted  for  larceny  cannot  be  convicted  of  obtaining  by  false  ])retences, 

684 
cannot  be  committed  of  dead  bodies,  445 
of  cattle.     (See  Oxttie. 
in  a  dwelling-bouse,  452 

interpretation  of  terms  in  act  relating  to,  G40 
distinction  between  grand  and  petit,  abolished,  641 
punishment  for  simple,  id. 
by  bailees,  641,  665 

tiiree  offences  of,  within  six  months,  may  be  charged  in  one  indictment,  641 
election,  id. 

after  previous  conviction,  642 
by  servant,  id. 

by  person  in  the  Queen's  service,  or  in  the  police,  643 
venue  in,  643,  692 
of  property  of  partners,  644,  679 
by  shareiiolders,  id. 
of  property  of  counties,  645 
of  goods  for  the  use  of  the  poor,  id. 
of  property  of  trustees  of  turnpikes,  646 

of  commissioners  of  sewers,  id, 

of  friendly  societies,  id. 

of  loan  societies,  id. 

of  building  societies,  id. 

of  industrial  societies,  id. 

of  trades'  unions,  id. 

of  savings  banks,  647 

of  Her  Majesty's  Customs,  id. 
summary  jurisdiction,  id. 
definition  of,  by  Eracton,  id. 
derived  from  tlie  civil  law,  id. 
other  definitions,  id. 
subjects  of,  what  are.  id. 

importance  of  the  distinction  between  'properly  and  possession,  id. 
meaning  of  terms  lucri  cuusd  and  animo furandi,  648. 
what  amounts  to,  generally,  id. 

giving  master's  corn  to  master's  horses,  673 
proof  of  taking,  649 

what  manual  taking  is  required,  id. 

least  removal  suflicient,  id. 

possession  obtained  by  mistake,  651 

cattle  straying,  id. 

distinction  l)etween  things  taken  and  things  delivered  by  mistake,  652 

possession  obtained  by  fraud,  653 
property  not  jiarted  with,  id. 
property  parted  with   655 

possession  obtained  from  servant  by  fraud,  662 

possession  obtained  by  threat,  664 

possession  obtained  by  false  process  of  law,  id. 

by  bailees,  665 

by  servants,  666 

difference  between,  and  embezzlement.  668  H  .<ieq.  684- 
difference  between,  and  larceny  by  bailees,  653,  668 

proof  of  intent  to  deprive  owner  of  his  property,  672 
'  goods  taken  under  a  claim  of  right,  674 

of  goods  founil,  675 
by  the  owner,  678 


1308  INDEX. 

LAUCE^Y— continued. 
by  luirt  owner,  079 
by  wife,  (JHI 

by  wife  ami  adulterer,  id. 
by  liusband,  084 
distinction   between  embezzlement,  obtaining  by  false  pretences,  and  larceny 

(584 
proof  of  value,  id. 

question  whether  goods  stolen  must  be  of  some  value,  id. 
of  clieque,  id. 
proof  of  ownership,  685 

when  unnecessary,  id. 

wlieie  the  goods  liave  already  been  tortiously  taken,  id. 

goods  in  custodid  leoi",  id. 

goods  of  an  adjudged  felon,  686 

goods  in  possession  of  children,  id. 

goods  in  possession  of  persons  liaving  a  special  property,  id. 

goods  in  possession  of  b:iilees,  id. 

goods  in  possession  of  carriers,  687 

goods  of  deceased  person,  688 

goods  of  lodgeis,  6S9 

goods  of  married  women,  id. 

goods  of  persons  unknown,  id. 

gooils  in  possession  in  servants,  690 

goods  of  coi-i)Oi-ations.  id. 

goods  in  a  cluirch,  692 
venue,  id. 

of  goods  in  ]irocess  of  manufacture,  743 
from  mine,  744 

distinction  between,  and  receiving,  912 
from  the  person,  931 
by  tenants  iind  lodgers,  971 
of  written  instruments,  992.     See  Written  Instruments. 

LEADING  QUESTIONS, 

not  to  be  asked.  141 

unless  witness  adverse,  142 

LETTER  OV  CREDIT, 

forgery  of,  579 

LETTERS.     See  Thrmteninq  Letters. 

stealing  or  detaining.     See  Post-office. 

LEX  LOCI, 

governs  validity  of  marriage,  330,  337 

LIBEL, 

blasphemous  695,  696 

indecent,  696 

on  tlie  government,  id. 

on  the  administration  of  justice,  698 

upon  individuals,  id. 

indictable  if  action  will  lie  without  special  damage,  id. 

no  indictment  for  words  spoken,  699 

on  persons  deceased  700 

on  foreigners,  id. 

on  foreign  jiowers,  id. 
upon  public  bodies,  id. 
punishment  of,  id.,  701 
costs,  701 

proof  of  introductory  averments,  id. 
proof  of  publication,  703 

printing  primdfncie  proof,  id. 

by  delivery  at  the  post-office,  id. 


INDEX.  1309 

LI  B  E  L — continuech 

proof  of  publication — continued. 

repeiition,  70-i 

to  the  party  libelled  himself,  id. 

in  foreign  language,  id. 

in  newspapers,  704.     See  also  Newspapers, 
Newspaper  J^ibel  Act,  705 
proof  of  piiblieatidH,  174,  704 
within  Vexatious  Indictments  Act,  192 
j)ro(f  of  copies  of  newspaiiei's,  704,  706 
fiat  of  public  prosecutor,  705 

by  adinission  of  defendant,  70G 

liability  of  publishers,  707 

by  servants  or  agents,  id. 

constructive  publication,  id. 
proof  of  innuendoes,  709 
proof  of  malice,  id. 
proof  of  intent,  710 
venue,  id. 

defendant  indictable  in  every  county  where  published,  id. 

unsealed  letter  sent  by  post,  id. 

post-mark  evidence  of  letter  having  passed  through  office,  711 
proof  for  the  defendant,  id. 

of  absence  of  malice,  id. 

justification  by  law,  712 

privileged  communication,  id. 

documents  published  by  order  of  House  of  Commons,  713 

fair  comment,  id. 

proceedings  in  courts  of  justice,  714 

I)ublic  comment,  id. 
plea  of  justification  giving  truth  of  libel,  715 
justification  may  be  specially  pleaded,  715,  716 
evidence  imder  plea  of  not  guilty,  716 

duty  of  judge  and  jury  respecting,  as  defined  by  statute,  716 
libels  to  extort  money,  974.     See  Threats. 

LICENSE, 

to  marry,  forgery  of,  557 

LIEN, 

persons  having,  may  dispose  of  goods,  279 
what  to  be  deemed,  280 

LIFE, 

duration  of,  presumption  as  to,  19 

LIMITATION, 

of  time  for  proceedings  under  Corrupt  Practices  Act,  346 
of  time  for  prosecuting  offences  under  Game  Acts,  598,  602. 
of  time  for  prosecutions  for  smuggling,  966 

LOADED  ARMS.    See  Arms,  Shooting. 
what  constitutes",  301 
assault  by  pointing,  304 
attempting  to  discharge,  with  intent  to  murder,  809 

LOAN  SOCIETIES, 

larceny  of  property,  646 

LOCKS, 

injuries  to,  952 

LODGERS, 

occupation  of  dwelling-house  by,  in  burglary,  373  * 

larceny  of  goods  of,  property  how  aescnbed,  689 
injuries  to  property  by,  971 
larceny  by,  id. 


1310  INDEX. 

LOST  DOCUMENTS, 
seaich  for,  8 

answers  to  inquiries  respecting,  id. 
contents  of,  may  be  proved  by  secondary  evidence,  id. 

LOST  PROPERTY, 
larceny  of,  675 

LOTTERIES, 
keeping,  823 

LUOBI  CAUSA, 

meaning  of  term,  647 

LUNATIC.    See  also  Insane  Peisons. 
marriage  by,  334 
ill-treatment  of,  636 

writ  of  habias  corpus  to  bring  up,  as  witness,  IH 
how  far  competent  witness,  118.     See  Insanity. 
arraignment  of.     See  Arraignment. 
judgment  on,  230 


MACHINERY, 

attempting  to  blow  up,  584,  717 

riotously  destroying  or  damaging.     See  Pdot. 

destroying  or  damaging,  717 

proof  of  damaging,  718 

what  machinery  is  within  the  statute,  id. 

MAGISTRATES, 

duty  of,  on  taking  examination  of  prisoner,  59 
duty  of,  on  taking  depositions,  73 
signing  depositions  by,  75 
false  declarations  before,  490 
forgery  of  order  of,  557 

MAINTENANCE, 

when  justifiable,  719 

in  respect  of  interest.  719,  720 

master  and  servant,  720 

affinity,  id. 

poverty,  id. 

counsel  and  solicitors,  id. 

champerty,  id. 

embracery,  721 

MALICE, 

presumption  of,  23,  760 

definition  of,  id. 

against  owner  of  property  injured  need  not  be  proved,  289 

in  arson,  how  proved,  296 

proof  of,  in  injuries  to  cattle,  391 

in  libel,  709 

al)sence  of,  in  libel,  711 

in  murder.     See  Murder, 
when  presumed  in  murder,  764 
proof  of,  in  wounding,  991  , 

MALICIOUS  INJURIES, 

general  provision  as  to,  722 

See  also  the  following  titles: — Araon,  Bridges,  Cattle,  Ounpowder,  Machimnj, 
Manufactures,  Mines,  Pigeons,  Poison,  Railways,  Plots,  Sacrilege,  Sea  and 
Biver  Banks,  Ships,  Telegraphs,  Tenants  and  Lodgers,  Trees  and  other  Vegetable 
Productions,  Turnpike  Gales,  Works  of  Art,   Written  Instruments. 


INDEX.  1311 

MALICIOUS  MISCHIEF,  722 
MALICIOUS  PKOSECUTION,  722 

MANSLAUGHTER.    See  Murder. 

prisoners  may  be  convicted  of,  on  indictment  for  murder,  83 

abroad,  2oS 

punishment,  723 

form  of  indictment,  id. 

distinction  between,  and  murder,  id. 

accessory  to,  whetlier  there  can  be,  181,  724 

provocation,  724 

mutual  combat,  id- 

resistance  to  officers  of  justice,  id. 

killing  in  the  performance  of  an  unlawful  act,  id. 

in  the  case  of  lawful  or  unlawful  sports,  72G 

prize  fights,  727 
in  the  course  of  lawful  employment,  729 

negligent  driving,  id. 
negligent  use  of  dangerous  weapons,  730 
contributory  negligence,  731 
by  persons  practising  medicine  or  surgery,  732 

neglect  of  duty,  736 

chastisement,  737 
in  defence  of  person  or  property,  id,  * 

MANUFACTURE, 

embezzlement  of  goods  in  process  of,  461 
destroying  goods  in  process  of,  743 
stealing  goods  in  process  of,  id. 

MARRIAGE.     See  Bigamy,  Presumption, 
proving  certificate  of,  174 
false  declaration  touching,  491 
license,  forgery  of,  657 

destroying,  altering,  or  forging  register  of,  id. 
giving  false  certificate  of,  id. 
transmitting  false  copy  of  register  of,  to  registrar,  558 

MARRIED  WOMAN.     See  Wife,  Husband  and  Wife. 
recognizance  by,  107 
larceny  of  goods  from,  property  how  described,  689 

MARRIED  WOMEN'S  PROPERTY  ACT, 
recognizance  by  married  woman,  108 

liusband  and  wife  competent  witnesses  for  and  against  each  other,  qucere,  129 
prosecution  by  husband  or  wife  against  each  other,  683 

MASTER, 

inducement  to  confess  by,  46 

assault  by,  against  servant,  307 

assault  by,  in  defence  of  servant,  308 

ill-treatment  of  servant  or  apprentice  by,  635 

when  not  liable  for  maintenance  for  assisting  servant,  720 

correction  administered  by,  737 

MATERIALITY, 

proof  of,  in  perjury,  849 

MEASURES.     See  Weights. 

MEDALS, 

uttering  foreign,  408 

counterfeit  medals  resembling  the  Queen's  current  coin,  412 


1312  INDEX, 

MEDICAL  MEN.     See  Surgeon,  Doctor,  Physician. 
exiuuinatioii  us  to  opinion,  147 
unskili'ul  treatment  by,  732 
no  dillereiice  between  licensed  and  unlicensed  practitioners,  733 

MEDICAL  WITNESS, 

what  question  can  be  put  to,  as  to  sanity,  1004 

MEETING-HOUSE, 

setting  fire  to,  285,  291 
breaking  and  entering,  553,  950 
riotously  demolisliing,  924 

MEMOEY 

of  witness,  refreshing  by  memoranda,  146 

MENACES.    See  Tlireat^. 

stealing  in  dwelling-houses  with,  453 

MENS  BEA.    See  Ouilty  Knowledge,  Intent. 

MERCHANT.     See  Agent. 
embezzlement  by,  278 
fraudulent  sale  by,  279 

MERCHANT  SHIPPING  ACT.    See  Ships. 
depositions  under,  80 

MILL  DAMS, 

injuries  to,  952 

MILITARY   STORES.     See  Naval  Stores. 

MILK, 

stealing  from  cows,  526 

MINE, 

of  coal,  setting  fire  to,  287 

proof  of  malice  in  offences  relating  to,  289 

conveying  water  into,  744 

damaging  machinery  or  engines  belonging  to,  id. 

larceny  from,  745 

removing  ore  from,  id. 

venue  of  offences  relating  to,  643,  692 

form  of  indictment  for  injuring,  745 

proof  of  injury  to,  id. 

MINERS, 

removing  ore  from  mine,  745 

MINORS, 

marriages  by,  336 

MISADVENTURE, 

death  caused  by,  724,  761.     See  Manslaughter,  Murder. 

MISAPPROPRIATION, 

by  agent,  278 

MISDEMEANOR.     See  Felony. 

conviction  for,  though  facts  amount  to  felony,  82 

no  accessories  in,  188 

election  in,  207 

compounding.  419 

parties  may  be  convicted  of,  in  cases  of  indictment  for  felony  by  poisoning, 

873 
costs  in.    See  Costs. 


INDEX.  1313 

MISJOINDER 
of  counts,  208 

MISPRISION 
of  felony,  420 

MISTAKE, 

larceny  of  goods  delivered  by,  651 

detaining  letters  delivered  by,  876  ' 

MISTRESS, 

inducement  to  confess  by,  46 

MOHAIR, 

embezzlement  of,  461 

MONEY  ORDERS.    See  Post-office. 

MONUMENTS, 

secondary  evidence  of  inscriptions  on,  13 

MORALITY, 

presumption  in  favor  of,  18 

MORAVIANS, 

affirmation  by,  123,  123 

MOTIVES, 

evidence  to  explain,  94  et  seq. 
evidence  to  show,  in  murder,  751 

MUNICIPAL  CORPORATION.     See  Corporations. 
false  declarations  at  elections  of,  490 
misappropriation  of  funds  of,  285 

MUNICIPAL  ELECTIONS.     See  Bribery,  Elections. 
ofiences  at,  457,  494 
false  declar.ations  at,  490 
false  personation  at,  494 

MURDER, 

prisoner  may  be  convicted  for  manslaughter  on  indictment  for,  83 

abroad,  where  triable,  258 

judgment  of  death  for,  228,  747 

judgment  of  death  recorded  in,  229 

conspiracy  to  commit,  436 

sending  letters  threatening  to,  972 

distinction  between,  and  manslaughter,  723 

punishment  for,  747 

sentence  for,  id. 

body,  how  to  be  disposed  of,  id. 

form  of  indictment  for,  id. 

petit  treason  abolished,  id. 

means  of  death  need  not  be  stated,  id. 

of  children,  conviction  for  concealing  birth  on  trial  for,  id. 

punishment  of  accessory  after  the  fact  to,  id. 

proof  of,  having  been  committed,  748 

whether  there  sliould  be  conviction  where  body  not  found,  id. 

of  child  in  tlie  womb,  749 

of  child  shortly  after  birth,  id. 

how  child  to  be  described  in  indictment,  750 

pi*oof  that  the  prisoner  was  the  party  killing,  751 

when  person  accused  is  principal  in,  id. 

act  done  in  prosecution  of  a  felonious  intent  constituted,  752 
persons  acting  with  common  intent,  id. 

83 


1314  INDEX. 

MURDER — continued. 

proof  of  means  of  killing,  754 

must  be  a  corporal  injury,  id. 
need  not  be  direct,  755 
•         coaipelling  another  by  threats  to  kill  himself,  id. 
by  savage  animals,  id, 
by  poison,  id. 

by  giving  false  evidence,  756 
by  wound  not  at  first  mortal,  757 
need  not  be  stated  in  the  indictment,  747,  760 
proof  of  malice,  760 

presumption  of,  id. 

murder  in  first  and  second  degree  distinguished,  761 
performance  of  an  unlawful  or  wanton  act,  id. 

person  killed  other  tlian  was  intended,  id.     See  Grevious  Bodily  Harm, 
riding  a  dangerous  horse,  762 
by  wilful  omission  of  duty,  763 

neglect  of  infants  and  others,  764.     See  Children,  Ill-treating. 
death  caused  bj-^  negligence,  768 
negligent  driving,  id. 
misadventure,  id. 

correction  by  masters  and  parents,  769 
dangerous  assaults,  id. 
provocation  in  general,  770 
bad  language,  id. 
insulting  conduct,  id. 
assault  demesne,  772 
instrument  used,  774 

dangerous  weapon  ought  to  be  avoided  if  possible,  id. 
third  parties,  776 

provocation  to  justify  must  be  recent,  777 
drunkenness,  782 

provocation  does  not  justify  express  malice,  783 
death  caused  in  mutual  combat,  784 
duelling,  787 
death  ensuing  on  apprehension,  789.     See  also  Apprehension. 
when  a  peace  officer  is  protected,  id. 
who  may  execute  warrant,  790 
warrant  how  to  be  executed,  791 
apprehension  under  defective  process,  id. 
notice  of  authority  must  be  given,  795 
felony  actually  committed,  796 
mode  of  executing,  id. 
suspicion  of  felony,  797 
misdemeanor,  id. 
breach  of  the  peace,  id. 
constable  not  bound  to  avoid  a  conflict,  id. 
when  a  house  may  be  broken,  798 
resistance  of  illegal  appreiiension,  800 
impressment  of  seamen,  802 
killing  in  defence  of  person  or  property,  804 
cases  oij'elo  de  se,  806 

persuading  another  to  commit  suicide,  id, 
accessories,  808 
attempts  to  commit,  809 
injuries  to  person,  id. 
blowing  up  buildings,  id. 
by  setting  fire  to  or  casting  away  ship,  id. 
by  attempts  to  injure  person,  id. 
by  other  means,  id. 
proof  of  intent  to  commit  murder,  id. 
proof  of  the  attempt,  810 
form  of  indictment,  id. 


INDEX.  1315 


MUTE, 

prisoner  standing,  how  dealt  with,  199 

MUTINY, 

inciting  to,  638 
mutiny,  id, 

MUTUAL  COMBAT, 

killing  in,  "24,  784,  787 


NAME, 

etiect  of  mistake  in,  88 

misspelt,  rule  oi  idem  sonans,  90 

what  evidence  sufficient  proof  of,  id. 

of  children,  in  indictment  for  child  murder,  750 

need  not  always  be  stated,  id. 

NAVAL  AND  MILITARY  STORES, 
statute  38  &  39  Vict.  c.  25,  811 
provisions  with  respect  to  stores,  id. 
definition  of  her  Majesty's  mark,  id. 
marking  with  her  Majesty's  mark,  id. 
power  of  constable  to  detain  vessel,  812 
having  possession  of,  id. 
Chelsea  and  Greenwich  stores,  id.,  814 
what  amounts  to  guilty  possession,  813 

NAVIGABLE  RIVER, 

obstructing.     See  Highways, 
injuries  to,  952 

NAVY. 

forgeries  relating  to,  564 
mutiny  in  the,  638 

NEGLECT, 

of  children,  398 

NEGLIGENCE, 

manslaughter  by.     See  Manslaughter. 
murder  by,  764-768.     See  Murder, 
contributory,  731 

NEGLIGENT  DRIVING, 
death  caused  by,  732,  768 

NEWSPAPERS, 

proof  of  publication  of  libel  in,  174,  704 

NEW  TRIAL, 

none  in  felony,  235 

contra  in  United  States,  id, 

in  misdemeanor,  id. 

grounds  for,  235 

on  indictment  relating  to  highways,  633 

NIGHT, 

apprehension  of  offenders  by,  260,  261 
proof  of  burglary  being  committed  by,  381 
what  constitutes,  under  Game  Act,  599 
meaning  of  term  in  Larceny  Act,  382,  641 

NIGHT-WALKERS, 

apprehension  of,  262 


1316  INDEX. 

NITRO-GLYCEEINE,    See  Dangerous  Goods,  Explosives. 
NOLLE  PROSEQUI,  209 

NOT  GUILTY, 

plea  of,  40 

plea  of,  when  to  be  entered,  199,  205 

NOTICE  TO  PRODUCE,  10.    See  Evidence. 

NOXIOUS  TRADES,  818 

NUISANCE, 

particulars  in  indictments  for,  194 

to  highwavs.     fSee  Highways. 

proof  of  public  nature  of,  815 

degree  of  annoyance  which  constitutes,  816 

no  answer  it  is  also  a  convenience,  id. 

in  accustomed  places,  id. 

neglecting  iniprovemen^ts,  817 

cannot  be  prescribed  for,  id. 

offensive  trades,  818 

keeping  explosives  or  inflammable  substances,  id.    See  Explosives. 

corrupting  streams  of  water,  819 

railways  and  steam-engines,  id. 

indecent  oi-  disorderly  exhibitions  or  conduct,  id. 

disorderly  inns,  821 

gaming-houses,  id.    See  Gaming^ 

lotteries,  823 

unlicensed  horse  races,  id. 

bawdy-houses,  id. 

play-houses,  id. 

places  of  public  entertainment,  824 

dangerous  animals,  id. 

spreading  contagious  diseases,  id. 

selling  unwholesome  provisions,  393,  824 

eavesdropping,  etc.,  824 

caused  by  agents  or  servants,  825 

owner  of  property  liable  for  permitting  property  to  be  so  used  as  to  create,  id. 

punishment  and  abatement  of,  826 


OATH.    See  Perjury. 

general  power  to  administer,  166 

depositions  must  be  taken  on,  72 

or  affirmation  by  witness  necessary  in  all  cases,  119 

king  must  take,  if  a  witness,  id. 

form  of,  121      _ 

depends  on  religious  belief  of  witness,  id. 

sufficient  for  purposes  of  perjury  if  declared  by  witness  tu  be  binding,  122 

affirmation  in  lieu  of,  id. 

administering  unlawful,  828 

proof  of  the  oath,  829 

aiding  in  administering  an  oath,  id. 

person  not  liable  if  he  makes  disclosure.  830 

what  amounts  to  a  disclosure,  id. 
to  join  in  unlawful  combinations,  id. 
administering  voluntary,  831 

OBSCENE  PU15LTCATI0N.    See  Libel. 
obscene  prints,.  821 

OCCUPATION, 

proof  of,  in  burglary,  370 


INDEX.  1317 


OFf'ENDERS, 

apprehension  of.     See  Apprehension. 

OFFENSIVE  AVEAPONS, 

proof  of  emiig-glers  being  armed  with,  964 
po;ichers  being  armed  with,  602 

OFFICER, 

of  justice.     See  Policemen,  Condalles.  Peace  Officer,  Public  Officer. 

apiiointnieiit  of,  when  presumed,  G,  17,  18,  83(j 

false  accounting  by,  HOI 

of  Bank  of  England  or  Ireland,  embezzlement  by,  4G1,  478 

of  savings'  bank,  embezzlement  by,  4G1 

of  justice,  disclosures  by,  privileged,  157 

of  public  companies,  offences  by,  832,  891 

misconduct  of,  832 

extortion  by,  833 

refusing  to  execute  oiEce,  834 

OFFICES, 

ofiences  relating  to,  832 
malfeasance,  id. 
nonfeasance,  833 
extortion,  id. 

by  oliicers  in  East  Indies,  834 
proof  on  refusal  to  execute  office,  id, 

OFFICIAL  COMMUNICATIONS, 
how  far  privileged,  159 

OMNIA  BITE  ESSE  ACTA, 
presumption,  18 

ONUS  PROBANDI,  17 

on  whom,  in  bigamy,  340 

in  possession  of  stolen  goods,  19 

in  importing  foreign  counterfeit  coin,  410 

in  making,  etc.,  coining  tools,  411 

under  the  Counterfeit  Medal  Act,  412 

in  conveying  coining  tools  out  of  the  Mint,  id. 

under  Explosive  Substances  Act,  487 

in  personating  bail,  493 

in  making,  etc.,  materials  for  forging  bills  and  notes,  548  et  seq. 

in  offences  against  seamen,  955 

in  insanity,  999 

OPINION, 

examination  of  witnesses  as  to,  147 
whether  subject  to  perjury,  846 

ORDER, 

for  payment  of  money,  forgery  of,  5'i4,  557 
for  delivery  of  goods,  forgery  of,  554,  583 

ORE, 

removing  by  miners,  745 

ORIGINALS, 

all  equally  authentic,  4 

printed  copies  are  all  equally  so,  id. 

OUT-HOUSE, 

setting  fire  to,  285 

meaning  of  term,  in  arson,  291 


1318  INDEX. 

OVERSEER, 

prosecution  for  assault  by,  635 
larceny  of  goods  of,  645 

OVERT  ACT, 

how  far  necessary  in  conspiracy,  426 

OWNER, 

larceny  by,  678 

OWNERSHIP, 

proof  of,  685.     See  Larceny. 

when  not  necessary  to  prove  any,  id. 

OYSTERS, 

stealing  or  dredging  for,  530 


PARDON, 

confessions  after  offer  of,  47 

promise  of,  does  not  render  accomplice  incompetent,  131 

what  claim  accomplice  has  to,  135 

removes  cLaim  to  privilege,  151 

plea  of,  205 

how  proved,  id. 

PARENTS, 

neglect  or  abandonment  of  children,  398 
deatli  caused  by  neglect  of,  736,  747 
chastisement  by,  3U7,  737,  769 

excessive,  causing  death,  737,  769 

PARISH, 

liability  to  repair  highways.    See  Highways. 

PARLIAMENT, 

proceedings  in,  privileged,  159,  712 

public  acts  of  parliament,  how  proved,  167 

private  acts,  icL 

journals  of,  how  proved,  164,  168 

bribery  at  election  of  members  of,  343 

false  declarations  at  election  of  members  of,  490 

false  personation  of  voters,  494 

PABTICEPS  CRIMINIS, 

admissibility  of  dying  declaration  by,  33 

PARTICULARS, 

of  charge,  when  prisoner  entitled  to,  194 

how  obtained,  195 

consequences  of  delivering,  id. 

consequences  of  not  delivering,  id. 

postponing  trial  for,  id. 

how  enforced,  id. 

must  be  delivered  in  barratry,  id.,  325 

in  conspiracy,  436 

in  embezzlement,  478 

delivery  of,  as  to  obstruction  to  highways,  194,  632 

PARTNER, 

occupation  of  house  by,  in  burglary,  381 
embezzlement  by,  466 
larceny  by,  644,  679 
property,  how  proved,  679 


INDEX.  1319 

PAKT   OWNEE, 
larceny  by,  079 

PARTRIDGES, 
larceny  of,  526 

PAUPER, 

conspiracy  to  marry,  428 

PAWNBROKER, 

restitution  of  stolen  property,  232 

PEACE, 

prevention  of  breach  of,  262,  264 

PEACE-OFFICER.     See  Constable,  Police. 
apprehension  of  offenders,  203 
difference  between,  and  private  persons,  264 
assault  on,  310 
killing.     See  Murder. 
killing  by.     See  Murder. 

PEDIGREE, 

evidence  to  prove,  29 
falsifying,  422 

PENALTIES, 

liability  to,  as  a  ground  of  privilege,  150 

PENETRATION, 
in  rape,  901 
in  sodomy,  967 

PER.JURY.     See  False  Declarations,  Oath. 
evidence  given,  how  proved  in,  4 
form  of  oath  imniateiial  in,  122 

affirmation  has  same  effect  as  oath  for  purposes  of,  123 
nature  of  offence  of,  886 

proof  of  authority  to  administer  an  oath,  id. 

not  necessary  to  prove  appointment  of  officer  who  administers  oaths,  id. 
jurisdiction  must  be  well  founded,  837 
form  of  indictment,  839,  862 
proof  of  occasion  of  administering  the  oath,  843 
cannot  be  assigned  against  jurors  for  a  false  verdict,  842 
form  of  jurat,  844 

may  be  assigned  on  affirmation  in  lieu  of  oath,  844 
substance  of  the  oath,  how  proved,  845 
swearing  to  belief  or  opinion,  id. 
whole  statement  must  be  taken  together,  847 
answers  to  questions  mateiial,  but  not  legal,  846,  851 
how  far  depositions  conclusive  in,  848 
proof  of  materiality,  849 

assigned  on  answers  to  questions  affecting  witness's  credit,  850 
degree  of  materiality  not  to  be  measured,  851 
materiality  how  averred,  id. 
proof  of  introductory  averments,  852 
proof  of  the  falsity  of  the  matter  sworn,  855 
proof  of  the  intent,  856 
number  of  witnesses  requisite,  id. 
what  corroboration  sufficient,  857 
provisions  of  the  5  Eliz.  c.  9,  relating  to,  861 
power  of  judge  to  commit  witness  for,  id. 

indictment  not  to  be  preferred  for,  without  previous  authority,  862 
punishment  of,  862,  863 


1320  IXDEX. 

TERJUIlY—contivued. 

postponing  trials  for,  863 
subornation  of,  804 

proof  of  tlie  incitement,  id. 

of  the  taking  of  the  false  oatli,  id. 
form  of  indictment  for,  id. 

PERSON, 

description  of,  in  indictment,  88 

PERSONATION.    See  False  Personation. 

PETIT  TREASON, 
abolished,  747 

PHEASANTS, 

larceny  of,  526 

PHOTOGRAPHS,  178 

PHYSICIANS.    See  Surgeon,  Medical  Men,  Doctor. 
confessions  to,  not  privileged,  154 

PIGEONS, 

when  subject  of  larceny,  526 
unlawfully  killing,  8G6 

PIRACY, 

offence  of,  at  common  law,  867 

statutes  relating  to,  id. 

dealing  in  slaves,  868 

what  amounts  to  869 

who  may  be  guilty  of,  id.,  870 

foreigner  may  be  punished  for,  id. 

accessories  to,  id. 

venue  in,  871 

punishment  of,  id. 

PLACARDS, 

secondary  evidence  of,  13 

PLACE, 

averment  as  to,  when  material,  when  proved,  90 

averments,  descriptive  of,  in  burglary,  how  proved.     See  Burglary, 

PLANTS, 

malicious  injuries  to,  984.    See  Vegetable  Productions. 

PLAY-HOUSES, 
keeping,  823 

PLEA, 

different  kinds  of,  202 

PLEADING.     See  Indictment. 
over,  205 

PLEDGING  GOODS, 

unlawfully,  by  agent,  banker,  factor,  etc.,  278,  279,  280 


INDEX.  1321 

POACHERS, 

apprehension  of,  598,  603 

POACHING.     See  Game. 

POISON, 

administering,  to  procure  abortion,  274 

pi-oof  of  administering,  id. 

administering,  not  an  assault,  305 

giving  to  cattle,  390 

killing  by,  755 

administering,  with  intent  to  murder,  809 

attempting  to,  with  intent  to  mui'der,  id. 

administering,  with  intent  to  commit  indictable  offence,  872 

administering,  so  as  to  inlllct  grievous  bodily  harm,  id. 

administering,  with  intent  to  injure,  aggrieve,  or  annoy,  id. 

persons  charged  with  felony  may  be  convicted  of  misdemeanor,  873 

killing  fisli  by,  id. 

proof  of  intent,  id. 

sale  of  poisoned  grain,  seed,  or  flesh,  id. 

POLICE.     See  Constable,  Peace- Officer. 

threat  or  inducement  by.     See  Confessions, 

metropolitan,  apprehension  by,  265 

rural,  apprehension  by,  id. 

detention  by,  under  Naval,  etc.,  Stores  Act,  812 

embezzlement  by,  459 

larceny  by,  643 

supervision  by,  233 

POLICY  OF  INSUKANCE, 
when  to  be  produced,  3,  10 

POLL.     See  CJiallenge  of  Jurymen. 

POOR, 

larceny  of  goods  for  the  use  of,  645 

POOR-RATE, 

collector  of,  in  whose  service,  for  purposes  of  larceny,  645 

PORTS.     See  Docks. 

POSSESSION.     See  Ancient  Possession. 
presumptive  evidence  of  property,  17 
difference  between,  and  property,  647 
imi)ortarioe  of  the  distinction,  648 

of  stolen  property,  presumption  from,  19,  912.     See  Stolen  Property. 
what  constitutes,  in  abduction,  270 

evidence  of  intrusting  agents,  banlcers,  factors,  etc.,  281 
person  in,  may  be  convicted  of  injuring  property,  289 
in  arson,  how  described,  296 
of  counterfeit  coin  or  coining  tools,  415,  417 
of  explosive  materials,  487 

of  materials  for  forging  securities  issued  by  bankers,  548,  549,  550 
of  materials  for  forging  securities  issued  by  exchequer,  548 
of  materials  for  forging  foreign  bills,  552 
meaning  of  term  in  24  &  25  Vict.  c.  98,  s.  45,  561 
of  materials  for  forging  stamps,  563 
of  naval  and  military  stores,  when  punishable,  813 
of  letters  on  way  through  post-olfice,  885 


1322  INDEX. 

POST-OFFICE, 

publication  of  libel  by  delivery  at,  703,  711 
oilences  relating  to,  874 

by  oilifers  of  the  post-ofBce,  id. 

opening  or  detaining  letters,  id. 

stealing,  embezzling,  secreting,  or  destroying  letters,  875 

stealing,  etc.,  printed  papers,  id. 

by  private  persons,  id. 

stealing  out  of  letters,  id. 

stealing  letters  from  mail  or  post-office,  id. 

stealing  from  post-oflice  packet,  870 

fraudulently  retaining  letters,  id. 

accessories,  id. 

receivers,  id. 

venue,  877 
property,  how  laid  in  indictment  for  ofTences  relating  to,  id. 
punishment  of  oflences  relating  to,  878 
interpretation  clause,  id. 
post-office  money-orders,  881 
what  is  a  post  letter,  id. 
proof  that  person  is  employed  by,  882 
proof  of  stealing,  embezzling,  etc.,  883 
what  is  a  post-office,  885 
possession  of  letters  on  way  through,  id. 
authority  of  servants  to  part  with  property,  id. 
forgeries  relating  to,  564 
post-office  order,  forgery  of,  578 

POSTPONEMENT  OF  TRIAL, 
binding  witnesses  over  on,  107 
of  criminal  trial,  199 
on  what  grounds,  200 
in  order  to  instruct  infant  witness,  116 
all  parties  bound  over,  200 
application  for,  when  to  be  made,  201 
of  trial  for  perjury,  8G3 
for  delivery  of  particulars,  195 
in  embezzlement,  478 

POWER  OF  ATTORNEY, 

fraudulently  selling  under,  279 
relating  to  stock  or  funds,  forging,  544 
forgery  of  attestation  to,  546 

PRACTICE,  190 

PRESS, 

privilege  of,  713 

PRESUMPTION, 

of  stamp  on  document  not  produced,  12 

general  nature  of,  15 

of  law,  16 

of  fact,  id. 

difference  between,  in  criminal  and  civil  cases,  id. 

general  instances  of,  17 

of  property  where  there  is  possession,  id. 

of  consent,  id. 

of  custom,  id. 

of  intention,  id. 

the  date  of  instrument  is  correct,  id. 

of  innocence  and  legality,  18 


INDEX.  1323 

PRESUMPTION— coTi^mwec?. 

'  against  immorality,  IS 
against  f)igamy,  /(/. 
omnia  rile  esse  acta,  id. 
of  appointment  of  public  officers,  id. 
from  the  course  of  nature,  19 

period  of  gestation,  id. 

of  continuance  of  life,  id. 
of  guilt  from  conduct  of  party,  id. 

from  jiossession  of  stolen  property,  id.     See  Receiving. 

when  it  is  to  be  made,  20 

proof  of  loss,  id. 

when  loss  considered  recent,  id. 

disproving  prisoner's  account,  21 

from  possession  of  property  in  other  cases,  22 
of  malice,  23 
of  intent  to  defraud,  24 
none,  of  valid  marriage,  328 
of  preliminary  ceremonies  in  bigamy,  334 
conflicting  presumptions,  339 
of  malice,  in  murder,  760 

in  favor  of  proceedings  in  smuggling  cases  being  duly  taken  and  officers  duly 
appointed,  966 

PREVENTION  OF  CRIMES  ACT, 

evidence  of  guilty  knowledge,  907,  918 

PREVIOUS   CONVICTION, 

evidence  of,  to  rebut  good  character  of  prisoner,  103 

of  witness,  id. 

how  proved,  1C5,  1C6 

of  witness,  how  i)roved,  166 

indictment  for,  193,  233 

arraignment  on,  224 

giving  in  charge  on,  225 

eflfect  of,  on  judgment,  233 

under  Game  Acts,  how  proved,  599 

larceny  after,  642 

uttering  false  certificate  of,  565 

in  cases  with  respect  to  false  coin,  408,  410,  415 

in  cases  of  receiving,  907,  918 

PRINCIPAL.     See  Accfssory. 

in  the  second  degree  in  felony,  181 

in  misdemeanors  an  accessory  is  a,  189 

who  is,  in  forgery  and  uttering,  593 

who  is,  in  murder,  752 

guilt  of,  how  proved  iu  indictments  for  receiving,  910 

PRINTED  COPIES, 

are  all  equally  originals,  4 

PRINTS.    See  Obscejie  Prints. 

PRISON  BREACH,  887 

PRISONER, 

examination  of.     See  Examination  of  Prisoner. 

entitled  to  copies  of  depositions  before  magistrate,  77 

not  entitled  to  copy  of  his  own  examination,  kL 

judge  may  order  it  to  be  given,  id. 

not  entitled  to  copies  of  depositions  taken  before  a  coroner,  78 

inspection  of  documents  by,  110 


1324  IXDEX. 

T'RISO'^E'R— continued. 

not  entitled  to  copy  of  indictment  in  felony,  194 

Imt  judge  may  direct  them  to  be  given,  id. 

is  entitled  in  misrdemeanor,  id. 

may  demand  particulars,  194 

entitled  to  subixrna  to  produce  witnesses,  110 

procuring-  attendance  of,  as  witness,  id. 

incompetent  to  give  evidence,  130 

exceptions,  id. 
may  call  accomplice  as  witness,  132 
right  of  challenging  jury,  212 
giving  in  charge,  217 
statement  when  defended,  219 
discharge  of,  230 

property  found  on,  liow  to  be  disposed  of,  id. 
when  court  may  order  restoration  to  owner,  231 
costs  of,  244 
aiding  to  escape,  889 

PKISONER'S  STATEMENT,  59,  210,  220.    See  Examination  of  Prisoner. 

PEISONER  AS  A  WITNESS,  130 

PEISONERS'   COUNSEL  ACT, 
rules  made  after,  67 

PEIVILEGE, 

proceedings  in  parliament,  159 
of  press,  713 
of  witnesses,  149 

difference  between,  and  incompetency,  id. 
conviction  not  reversed  if  (irivilege  improperly  refused,  id, 
on  what  grounds  it  may  be  claimed,  id. 
of  forfeiture,  id. 
of  ecclesiastical  penalties,  150 
of  criminal  penalties,  id. 
privilege,  whether  lemoved  by  pardon,  151 
exceptions  by  statute,  id. 
before  election  committees,  id. 
right  to,  how  decided,  id. 

bare  oath  of  witness  not  always  sufficient,  152 
degrading  questions  may  be  juit,  if  material,  id. 
proof  of  jirevious  conviction  of  witness,  id.,  166 
of  husband  and  wife,  153 
of  confidential  adviser,  id. 

only  legal  adviser  privileged,  154 
not  physicians,  surgeons,  or  clergymen,  id, 
on  the  ground  of  jniblic  policy,  157 
persons  in  a  judicial  capacit}',  id. 
of  witnesses,  on  disclosures  by  informers,  id. 
to  officers  of  justice,  158 
official  communication,  159 

correspondence  between  members  of  goyernment,  id. 
proceedings  in  parliament,  id. 
state  papers,  id. 
objection  to  answer,  how  taken,  IGO 
may  be  waived,  id. 
may  be  claimed  at  any  time,  IGl 
effect  of  refusing  to  answer,  id. 

if  privilege  not  claimed,  answers  may  be  used  against  him,  id. 
but  not  if  claimed  and  improperly  refused,  id. 
when  removed  by  statute,  id. 
of  bankrupts,  52,  161,  281 
of  agents,  bankers,  etc.,  162,  281 


INDEX.  1325 


PRIVILEGED   COMMUNICATION, 

seconchirv  evidence  of,  12 
defence  of,  in  libel,  710,  712,  713 

PRIZE-FIGHT, 

wliether  :in  affray,  277 
death  caused  by,  72S 

PROBATE, 

proof  of,  172 

obtaining  property  by  means  of  false,  558 

PROCESS 

forgery  of,  555 
using  false,  id. 

PROCLAMATIONS, 

how  proved,  IGl 

PROMISSORY   NOTE, 

inducing  persons  by  false  pretences  to  accept,  sign,  etc.,  498 
drawinir,  indorsing,  etc.,  without  authority,  554 
proof  of  forging,  573 
larceny  of,  9^4 

PROOF, 

burden  of,  17 

PROPERTY, 

fonid  on  prisoner,  how  to  be  disposed  of,  230 

when  court  may  order  restoration  to  owner,  231 

description  of,  in  indictment,  87.     See  also  Larceny. 

presumption  from  possession  of,  19.     See  Presumption. 

of  corporations,  ()^^0 

meaning  of  term,  in  Larceny  Act,  648 

assault  in  defence  of,  309 

killing  in  defence  of,  737,  804 

statement  and  proof  of,  in  indictment.     See  Indictment,  Larceny. 

of  partner,  644 

PROSECUTION, 

expenses  of.     See  Costs, 
opening  case  for,  217 

PROSECUTOR.     See  also  Director  of  Pablic  Prosecutions. 
admissions  by,  not  generally  evidence  for  prisoner,  54 

PROTECTION 

of  witnesses  from  arrest,  114 

PROVISIONS, 

obstructing  sale  of,  302 
selling  unwholesome,  393,  824 

PROVOCATION.     See  Murder,  Manslaughter. 
killing  on,  724,  770 
as  defence,  in  murder,  770 

PUBLICATION, 

proof  of,  in  indictment  for  libel,  703.     See  Libel. 

PUBLIC  BODIES, 
libel  upon,  700 


1326  INDEX. 

PUBLIC  BUILDINGS.      See  Buildings. 

PUBLIC  COMPANY.     See  Corporaiions. 
books  of,  proof,  174 
liability  of,  to  repair  bridges,  354,  356 
ofiences  by  officers  of,  8'Jl 

embezzlement  of  property,  id. 

keeping  fraiitlulent  accounts,  id. 

destro^'ing  or  falsifying  books,  id. 

publishing  frau(fu  ent  statements,  id. 

protection  of  person  accused,  892 

falsification  of  books  of  joint-stock  company,  id. 

declarations  by  railway  officers,  id. 
occupation  of  house  by,  in  burglary,  375 
larceny  by  shareholders  of,  644,  (379 
property,  how  laid,  690 
how  proved,  691 
forgeries  relating  to  stock  of,  529,  530 

See  also  Railway  Companies. 

PUBLIC  DOCUMENTS.    See  Documents. 
secondary  evidence  of,  13 
forging,  562 
no  ditierence  between  forgery  of,  and  of  private,  543 

PUBLIC  FUNDS.    See  Stock. 

PUBLIC  HEALTH. 

injuries  to,  by  selling  unwholesome  provisions,  393,  824 

PUBLIC  OFFICERS.    See  Officers. 
appointment  of,  how  proved,  6 
presumed  to  be  flnly  appointed,  18 
false  accounting  by,  394 

PUBLIC  PLACE,  820 

PUBLIC  POLICY, 

privilege  of  witnesses  on  the  ground  of,  157 

PUBLIC  PKOSECUTOR.     See  Director  of  Public  Prosecutions. 

PUBLIC  ROAD, 

destroying  game  on,  ^99 

PUBLIC  USE, 

larceny  of  things  set  up  in  place  for,  583 

need  not  be  alleged  to  be  property  of  any  person,  685 

PUBLIC  WORSHIP, 
disturbing,  450 

PUBLISHER, 

liability  of,  for  publication  of  libel,  703. 

PUNISHMENT.     See  Judgment. 

affidavits  in  aggravation  or  mitigation  of,  228 


QUAKERS, 

affirmation  by,  122,  123 
proof  of  marriage  by,  330 


INDEX.  1327 


QUARTER  SESSIONS, 

jurisdiction  of  court  of,  195 

whether  suspended  during  assizes,  196 

estreating  recognizances  of  witnesses  at,  108 

QUASHING  INDICTMENTS,  208 

QUEEN'S  BENCH, 

removal  of  proceedings  into.     See  Certiorari. 


RABBITS, 

taking  or  killing,  526,  527.     See  Game — Ferce  Natures, 

BA.ILWAY  COMPANIES, 

liability  to  repair  bridges,  355 
offences  relating  to,  893.     See  Railways. 
misconduct  of  servants  of,  893 

RAILWAY  STATIONS, 

setting  fire  to,  285 

RAILWAY  TICKET, 

obtaining  by  false  pretences,  576 
forgery  of,  582 

RAILWAYS, 

are  highways,  613 

obstruction  to  highway  by,  622 

nuisances  caused  by,  819 

offences  relating  to,  893 

misconduct  of  servants  of,  id. 

endangering  safety  of  passengers  on,  894 

obstructing  engines  or  carriages  on,  895 

proof  of  intent,  id. 

what  are,  896 

proof  of  obstruction,  id. 

RAPE, 

crime  of,  897 

procuring  the  defilement  of  a  girl,  id. 

carnally  knowing  a  girl  under  twelve  years,  id. 

between  twelve  and  thirteen,  id. 
evidence  of  complaint  in  cases  of,  2G,  903 
particulars  not  admissible,  id. 
definition  of,  898 

infant  under  fourteen  years  of  age  incapable  of  committing,  id. 
husband  cannot  commit  on  his  own  wife,  899 
may  be  accessory  to,  id. 
effect  of  consent,  id. 
consent  obtained  by  fraud,  id. 
woman  made  drunk,  900 
proof  that  the  offence  is  completed,  901 
proof  against  accessories,  902 
credibility  of  witness  making  charge  of,  id. 
woman's  character  for  chastity  impeached,  903 
particular  instances  of  unchastity  cannot  be  proved,  id. 
defilement  of  children,  id. 

proof  of  age,  id. 

nature  of  the  offence,  904 
assault  with  intent,  id. 


1328  INDEX. 

JIA  TWNE  CLA  USURJE, 

liability  lo  repair  highways,  G26 

BATIONE  TENURM 

liability  to  repiir  bridges,  355 
liability  to  repair  highways,  629 

EEAL  ESTATE, 

personating  owners  of,  495 

EEASONABLE  DOUBT,  17. 

EEBUTTING  EVIDENCE,  220 

EECEIPT.     See  Evidence. 
forgery  of,  554,  581 

EECEIVING, 

stolen  goods,  evidence  of  guilty  knowledge  in,  98,  907.     See  Presumption. 

forged  bank  securities,  549 

stolen  goods,  906 

where  t!ie  principal  is  guilty  of  felony,  id. 

separate  receivers,  how  triable,  id. 

persons  indicted  jointly  may  be  convicted  separately,  907 

where  the  principal  is  guilty  of  a  misdemeanor,  id. 

Prevention  of  Crimes  Act,  guilty  knowledge,  898,  907 

goods  belonging  to  wrecks  or  ships  in  distress,  887 

venue,  899,  907 

election,  899 

form  of  indictment,  908 

proof  of  guilt  of  principal,  910 

conviction  not  conclusive,  911 

confession  of  principal  not  evidence,  53 

what  is  stolen  property,  911 

presumption  arising  from  possession  of  stolen  property,  912 

distinction  between  receiving  and  stealing,  id. 

what  amounts  to  a  joint  receipt,  916 

husband  and  wife  when  liable  as  joint  receivers,  id. 

EECOGNTZANCE, 

compelling  attendance  of  witnesses  by,  107 
witness  refusing  to  enter  into,  id. 
of  infants  and  married  women,  id. 
estreating,  108 
forgery  of,  557 

EECOED  OF  CONVICTION, 

how  proved,  165,  167 

EECORDS, 

how  proved,  168 

of  County  Courts,  172 

forgery  of,  555 

property  need  not  be  laid  in  any  person  in  indictment  for  stealing,  085,  993 

stealing,  993 

EE-EXAMINATION, 

limits  within  which  confined,  145 

EEFOEMATORIES, 

power  to  send  juvenile  offenders  to,  229 

EEFRESIIING  MEMORY, 

by  informal  return  of  examination  of  prisoner,  6 
of  witness  by  memoranda,  146 


INDEX.  1329 

KEGISTERS, 

proof  of,  174 

of  newspapers,  175 

making  false  declaration  to  be  Inserted  in,  491 

destroying,  altering,  or  ibrging,  !')b7 

giving  false  certificates  of  contents  of,  id. 

transmitting  false  copy  of  register  of,  to  registrar,  558 

forgery  of  non  parochial,  584 

proof  of  destroying,  defacing,  or  injuring,  584 

EEGISTRY, 

of  deeds,  forgery  connected  with,  556 

KELIGION, 

incompetency  from  want  of,  119 

questions  as  to,  to  ascertain  competency,  120 

infant  witness,  ignorance  of,  IIG 

EEMUNERATION, 

of  witnesses.    See  Witnesses. 

REPAIR, 

of  highways.     See  Highways. 
of  bridges.    See  Bridges. 

REPLY, 

right  to,  220 

REPUTATION, 
evidence  of,  30 

evidence  of,  to  repair  bridge  ratione  tenures,  355 
evidence  of,  as  to  liability  of  parish  to  repair  highways,  623,  628 
general  reputation,  as  to  disorderly  houses,  823 

REQUEST, 

for  payment  of  money,  forgery  of,  554,  577 
for  delivery  of  goods,  forgery  of,  554,  583 

BES  OESTM,  26 

RESCUE, 

nature  of  tlie  offence,  920 

proof  of  the  custody,  id. 

aiding  prisoner  to  escape,  889,  921 

RESERVOIRS, 

injuries  to,  952 

RESTITUTION, 

award  of,  on  proof  of  forcible  entry,  539 

of  stolen  priiperty,  230 

by  pawnbroker,  232  > 

RETREAT, 

duty  of  one  assaulted  to,  772 

REVENUE, 

offences  relating  to.    See  Customs. 

REWARDS, 

for  apprehension  of  offenders,  245 

advertising,  for  return  of  stolen  property,  420 

keeping  property  in  hope  of  reward,  676 

to  prosecutor  in  prosecution  for  returning  from  transportation,  982 

to  persons  preventing  smuggling,  966 

84 


1330  IXDEX. 

EIOT.    See  Affrmj. 

offences  under  tlie  Riot  Act,  923 

riotouisly  injuring  or  demolishing  buildings,  924,  927 

seamen  riotously  preventing  the  unloading  of  vessels,  924 

riotous  behavior  at  burials,  925 

proof  of,  925 

refusing  to  aid  constable  to  quell,  926 

proof  of  rout,  929 

of  unlawful  assembly,  id, 

EIVEE, 

corrupting,  819 

obstructing  navigable,  620.     See  Highways. 

RIVER   BANKS, 

injuries  to,  952 

EOBBERY,  931 

conviction  for  assault  with  intent  to  rob  on  indictment  for,  82,  931 

assault  with  intent  to  commit,  932 

with  violence,  id. 

at  common  law,  id. 

there  must  be  a  larceny,  id. 

proof  of  the  taking,  933 

proof  of  the  felonious  intent,  934 

proof  of  the  taking  from  the  person,  id. 

in  presence  of  the  owner,  935 

against  the  will  of  the  owner,  936 

proof  of  violence,  id. 

under  pretence  of  legal  proceedings,  938 

proof  of  putting  in  fear,  939 

threats  to  accuse  of  unnatural  offence,  943.     See  Threat. 

putting  in  fear  must  be  before  taking,  949 

ROMAN  CATHOLIC  PRIEST, 
confessions  to,  not  privileged,  154 

ROUT, 

proof  of  a,  955 


SACETLEGE,  950 

proof  that  the  building  is  a  church,  chapel,  etc.,  id. 
property  how  laid  in  indictment,  id. 

SAILOE.    ^GQ  Seamen. 

SALMON,  953.    See  Fish,  Poison,  Sea. 

poisoning  water  with  intent  to  kill,  953 

SAVINGS  BANK, 

appointment  of  clerk  to,  how  proved,  7 
larceny  of  goods  belonging  to,  647 
embezzlement  by  officer  of,  461 

SCHOOLHOUSE, 

breaking  and  entering,  453 

SCIENTIFIC  WITNESSES,_ 

examination  of,  as  to  opinion,  147 
perjury  by,  846 

SCOTLAND, 

proof  of  marriages  in,  331 


INDEX.  1331 


SEA  BANKS,  ETC., 
injuries  to,  95 

SEALS, 

proof  of,  176 

wlu'ii  dispensed  with,  1G3 

her  Miijesty's,  forging,  541: 

of  register  oiiice  of  deeds,  forging,  556 

of  register  oiiice  of  birtiis,  etc.,  forging,  557 

to  public  documents,  forging,  166,  562 

to  documents  made  evidence,  forging,  166,  563 

SEAMEN 

assault  on,  303 

false  personation  of,  493 

forgeries  relating  to,  564 

riotously  preventing  the  loading,  etc.,  of  vessels,  924 

forcing  on  shore,  954 

discharging  or  leaving  behind,  id. 

SEARCH  FOR  LOST  DOCUMENTS,  8 

SECONDARY   EVIDENCE.    See  Evidence. 
admissibility  of,  question  forjudge,  13 

SECOND-HAND  EVIDENCE.    See  Hearsay. 

SECRETARY  OF   STATE, 

warrant  from,  to  bring  up  witness  in  custody.  111 

SECURITIES.     See  Valuable  Security. 

SEDUCTION,  267 

SELF-DEFENCE,  634 

killing  in,  737,  772,  804 

SENTENCE  FOR  MURDER,  747.    See  Death,  Judgment. 

SEPARATISTS, 

afBrmation  by,  123 

SERVANT.     See  3faster. 

assault  by,  in  defence  of  master,  308 

occupation  of  house  by,  in  burglary,  377 

embezzlement  by,  463 

falsification  of  accoimts  by,  462 

who  is  a,  462,  463,  464 

ill-treating,  635 

larceny  of  goods  from,  property  how  described,  690 

publication  of  libel  by,  707 

correction  of,  by  masters,  737 

when  not  liable  for  maintenance  for  assisting  master,  720 

liability  of  master  for  nuisance  caused  by,  825 

SETTING  FIRE, 
how  proved,  289 

SEWERS, 

larceny  of  property  of  commissioners  of,  646 


1332  INDEX. 

SHAEFTTOLDEES, 
lurceny  by,  G44,  079 

SHAEES.    See  Stock. 

SHED, 

setting  fire  to,  285 
proof  of,  293 

SHEEP, 

killing  with  intent  to  steal,  389 
killing,  maiming,  or  wounding,  id. 
stealing,  id. 

SHIP.    See  Wreck. 

SHIPS, 

setting  fire  to,  287,  288,  289 

meaning  of  term,  in  arson,  294 

impeding  person  endeavoring  to  escape  from,  300 

assaulting  persons  endeavoring  to  save  goods  belonging  to,  302 

placing  gunpowder  near,  485 

setting  lire  to,  or  casting  away,  with  intent  to  murder,  809 

stealing  from,  'JoG 

in  distress  or  wrecked,  stealing  from,  id. 

damaging,  957 

by  false  signals  or  otherwise  endangering,  id. 

removing  c^'  concealing  buoys,  etc.,  id. 

injuries  to  wrecks,   id. 

by  misconduct  endangering  safety  of,  958 

sending  unseaworthy  ships  to  f5en,  id. 

neglecting  to  render  assistance  in  case  of  collision,  id. 

accused  a  competent  witness,  130,  958 

venue  in  oflences  relating  to,  958 

sho6t, 

attempting  to,  301 

what  amounts  to  attempt  to,  312 

attempting  to,  with  intent  to  murder,  809 

SHOOTING, 

at  any  person,  301 

into  dwelling-house,  an  entry,  367 

shooting  at  A.  wilh  intent  to  hit  B.,  etc.,  611 

attempting  to,  with  intent  to  murder,  809 

what  sliall  constitute  loaded  arms,  960 

proof  of  arras  being  loaded,  id. 

proof  of  sliooting,  961 

at  vessels  belonging  to  the  navy,  965 

SHOP, 

setting  fire  to,  285 
riotously  injuring,  924 
breaking  and  entering,  622 
what  constitutes  a,  id. 

SHEUBS, 

injuries  to,  983 

SIGNALS, 

making  false,  957 

making,  to  vessels  engaged  in  smuggling,  964 


INDEX.  1333 

SIGNATURE, 

of  prisoner  to  examination  not  absolutely  necessary,  63 

ellcct  of  it,  64 

of  witness  to  depositions,  75 

of  iiKigistratcs  to  depositions,  id. 

to  depositions  need  not  be  proved,  id. 

not  necessary  to  (lejxisiiioas  befoie  a  eoroner,  but  desirable,  79 

to  puiilic  documents,  forging,  562 

to  documents  made  evidence,  forgery  of,  563 

SIGNING, 

bill  of  excliange,  etc.,  without  authority,  554 

SILENCE, 

confession  inferred  from,  56 

SILK, 

embezzlement  of,  461 

SKELETON, 

identiiication  of,  748 

SKILLED  WITNESSES, 
examination  of,  147 
perjury  by,  846 

SLANDEROUS  WORDS, 
not  indictable,  700 

SLAVES, 

olience  of  dealing  in,  868 

SMALL-POX, 

exposing,  is  an  indictable  offence,  824 

SMUGGLING, 

ofience  of,  963 
assembling  to  assist  in,  id. 
proof  of  assembling  together,  964 
proof  of  being  armed  with  ofTensive  weapons,   id. 
making  signals  to  smuggling  vessels,  id. 
shooting  at  vessels  belonging  to  navy,  965 
assanliing  revenue  ofheers,  id. 

compensations  and  le wards  to  persons  preventing,  966 
indictments,  how  preferred  and  found,  id. 
limitation  of  time  for  prosecution  for,  id. 
venue,  id. 

presumption  in  favor  of  proceedings  being  duly  taken,  and  officers  duly  ap- 
pointed, id. 

SODOMY, 

threats  to  accuse  of,  943,  973,  978 
offence  of,  967 

SOLDIERS, 

inciting  to  mutiny,  688 
false  personation  of,  493 

SOLICITOR, 

embezzlement  by.     See  Attorney. 
barratry  by.     See  Barratry. 

SOLITARY  CONFINEMENT,  878 

SPORTS, 

death  caused  in  lawful  or  unlawful,  726 


1334  INDEX. 

SPEING   GUNS, 

when  a  nuisance,  815 
setting,  9ti8 

STABBING.     See  Wounding. 

STABLE, 

setting  fire  to,  285 
riotously  demolishing,  924 

STACKS, 

setting  fire  to,  287 

meaning  of  term,  in  arson,  294 

STAGE  COACHES, 

forgeries  relating  to,  564 
larceny  from,  25U,  687 

STAMPS, 

presumption  of,  when  document  not  produced,  12 

proof  of,  when  dispensed  witli,  164 

proof  of,  ill  criminal  cases,  ISO 

on  documents  made  evidence,  forgery  of,  166,  563 

to  public  documents,  forging,  662 

forgery  of,  564,  569 

possessing  materials  for  forging,  564 

forgery  of  instrument  invalid  for  want  of,  574 

STATE, 

matters  of,  how  far  privileged,  159 

STATEMENT  OF  PRISONER, 

by  counsel,  219 

STATIONERY  OFFICE, 

documents  printed  at  Her  Majesty's  stationery  office,  164 
proof  of,  id. 
forgery  of,  563 

STEALING.     See  Larceny. 
in  a  dwelling-house,  453 
from  the  person,  931,  934 

STEAM-ENGINES.     See  Machinery,  Engines. 
used  in  mines,  injuries  to,  744 
nuisances  caused  by,  819 

STOCK, 

proofs  of  register,  175 

forgeries  relating  to,  in  public  funds,  529,  530 

forgeries  relating  to,  in  public  company,  id. 

personating  owner  of,  in  public  funds  or  company,  496,  546 

proof  of  forging  tr;insfer  of,  569 

proof  of  personating  owner  of,  570 

STOLEN  PROPERTY, 

receiving.     See  Receiving  Stolen  Goods. 

proof  of  loss,  20 

when  loss  considered  recent,  id. 

disproving  prisoner's  account,  21 

restitution  of,  to  o\vnf>r,  231 

presumption  of  guilt  from  possession  of,  19,  912 

presumption  arising  from  jjossession  of,  where  owner  unknown,  689 

advertising  rewards  for  recovery  of,  420 

taking  reward  for  discovery,  id. 


INDEX.  1335 

STORES,  811.    See  Naval  Stores. 

STRANGLE, 

attempts  to,  301 

STREAMS, 

corrupting,  819 

SUBORNATION 

of  perjury,  864.    See  Perjury. 

SUBPCENA, 

compelling  attendance  of  witnesses  by,  108 

by  wliom  issued,  id. 

from  courts  of  limited  jurisdiction,  109 

duces  tecum  to  produce  documents,  id. 

four  persons  may  be  included  in,  id. 

must  be  served  personally,  id. 

when  to  be  served,  /<:/. 

not  necessary  where  witness  jiresent,  id. 

fur  prisoner  to  witness  for  defence,  110 

attachment  of  witness  for  not  obeying,  111 

SUICIDE, 

otrence  of  committing,  806 
persuading  another  to  commit,  id. 

SUMMARY  CONVICTION, 

no  prosecution  for  assault  if  case  disposed  of  by,  303,  309 
in  embezzlement,  460 
in  larceny,  647 
in  receiving,  908 

SUMMING-UP  BY  COUNSEL,  218 

SUMMONS, 

forgery  of,  555,  557,  584 

SUPERINTENDENT   REGISTRAR, 
marriages  before,  330 

SUPPRESSION 

of  document  or  fact  in  transfer  of  land,  422 

SURETI ES.     See  Fines  and  Sureties. 

whether  witness  can  be  compelled  to  find,  107 

SURGEON.     See  Medical  Man,  Doctor,  Physician. 

whether  he  must  be  called  to  prove  condition  of  absent  witnesses,  70 
confessions  to,  not  privileged,  154 

SWANS, 

whether  subjects  of  larceny,  526 


TAKING, 

what  constitutes,  in  abduction,  269 
wiiat  constitutes,  under  Game  Acts,  600 
what  constitutes,  in  larceny,  649 

TALES, 

whether  can  be  prayed,  212 


1336  INDEX. 

TELEGEAPH  MESSAGES,  970 

TELEGRAPHS, 

injuries  to,  969 

TENANTS, 

occupation  of  house  by,  in  burglary,  379 
injuries  to  property  by,  971 
larceny  by,  id. 

TENANTS   IN  COMMON, 

larceny  by,  644 

TERRIERS, 
proof  of,  176 

THEFT-BOTE,  419 

THREAT.     See  also  Threatening  Letters. 

effect  of,  to  exclude  confession.     See  Confessions. 

stealing  in  dwelling-house  with,  453 

is  evidence  of  malice,  761 

demanding  property  with,  with  intent  to  steal,  972,  97 

to  accuse  of  crime  with  intent  to  extort,  973 

inducing  a  person  by,  to  execute  deed,  etc.,  id. 

immaterial  froui   whom  they  proceed,  974 

to  publish  a  libel  witii  intent  to  extort,  id. 

proof  of  the  sending  the  letter,  id. 

proof  of  the  demand,  975 

proof  of  the  threat,  977 

to  accuse  of  infamous  crimes,  978 

matter  of  defence,  979 

THREATENI?^G    LETTERS, 

sending,  972.     See  Threat. 

to  min-der,  id. 

demanding  property  with  menaces,  id. 

to  accuse  of  crime  with  intent  to  extort,  973 

to  burn  or  injure  propei-ty,  974 

proof  of  sending,  id. 
proof  of  the  nature  of,  976 
question  for  the  jury,  id. 

TIME, 

averments  as  to,  whe/i  immaterial,  86 
averment  as  to,  when  material,  how  proved,  91 

TITLE.     See  Documents  of  Title. 

TITLE  TO   LANDS, 

fraudulent  dealing  with,  422 

concealment,  suppression,  or  falsification,  id. 

TOLL-BARS, 

injuries  to,  987 

TOLL-HOUSES, 
injuries  to,  id. 

TRADE-MARKS, 

cheating  by  use  of  false,  395 
forgery  of,  543.  563 


INDEX.  .  1337 

TRADES, 

nuisance  by  carrying  on  offensive,  818 

TRADES'   UNIONS, 

larceny.  See  Friendly  Societies. 
issuing  false  copies  of  rules,  489 
conspiracy  in.     (See  Conspiracy. 

TRANSFER  OF  STOCK, 

forgeries  relating  to,  544,  569 

TRANSPORTATION, 

returning  from,  9S0 

punislinient,  981 

reward  to  prosecutor,  982 

TREATIES, 

liow  proved,  164 

TREATING,  343 

TREES, 

setting  fire  to,  286,  294 

stealing  or  destroying  with  intent  to  steal,  532,  963 

injuries  to,  id.,  983 

TRIAL, 

conduct  of  the  trial,  217.     See  Prosecution,  Cross-examination,  Summing-up,  De- 
fence, Reply. 
postponement  of,  107,116,200,963 
new,  when  granted,  235 

TRUSTEES, 

frautl  by,  987 

fraudulently  disposing  of  property,  id. 

who  are  within  the  act,  id, 

TURNPIKE  GATES, 

injuries  to,  987 

TURNPIKE  ROAD, 

larceny  of  property  of  trustees  of,  646 

TURNPIKE  TICKET, 
forgery  of,  582 


UNDERTAKING, 

for  payment  of  money,  forgery  of,  554,  577 

UNDUE  INFLUENCE,  343 

UNLAWFUL  ASSEMBLY, 

proof  of  an,  929  ' 

UNLAWFULLY  WOUNDING, 

conviction  for,  on  indictment  for  felony.     See  Wounding. 


1338  .    INDEX. 

UNNATURAL  OFFENCE, 

od'eiK-e,  9G7 

robborv  by  means  of  threat  to  accuse  of,  9j3 
seiiiliiig  Jelt''''''s  threatening  to  accuse  of,  973,  978 
tlireats  to  accuse  of,  id. 

UNSTAMPKD    INSTRUMENT, 

forgery  of,  574 

UNWHOLESOME  PROVISIONS, 
otiences  of  selling,  393,  824 

UTTERING, 

evidence  of   guilty  knowledge,  95,  594 
counterfeit  coin,  proof  of,  413 

meaning  of  term,  4l4 
forged  instrument,  proof  of,  585 
proof  of  falsity  of  instrument,  589 
form  of  indicunent  for,  691 
w!io  are  accessories  in,  593 
who  are  principals  in,  413,  494 
venue,  412,  595 


VALUABLE   SECURITY, 

agents,  etc.,    fraudulently  pledging,  278,  279,  280 

meaning  of   term,  in    Larceny  Act,  640 

meanin>,'of   term  in  statutes  relating  to  post-ofEce,  880 

demanding,  by  means  «f  threats,  972 

stealing,  992,  994 

VALUE, 

averments  as  to,  86 

averments  as  t;),   when  material  how  proved,  91 
proof  of,   of  goods  stolen  in  dwelling  house,  454 
whether  goods  stolen  must  be  of  some,  684 

VEGETABLE  PRODUCTIONS, 

setting  tire  to,  286,  287,  294 
injuries  to,  984 

VENUE. 

in  offences  by  accessories,  189 

statutory  regulations  as  to,  248 

offences  committed  on  boundary  of  two  counties,  249 

offences  committed  partly  in  one  county  and  partly  in  another,  id. 

in  detached  parts  of  counties,  id. 

in  coaches  or  vessels,  250 

in  county,  or  city,  or  town  corporate,  250 

at  sea,  2")  2 

jurisdiction  of  admiralty,  254 

partly  at  sea  and  partly  on  land,  256 

abroad,  257 
where  property  ca'-ried  through  several  counties,  258 
jurisdiction  of  Central  Criminal  Court,  id. 
change  of,  2()0 

in  indictment  against  bankrupt,  324 
in  bigamy,  340 

in  indictment  for  non-repair  of  bridges,  356 
in  challenging  to  fight,  392 
in  offences  relating  to  coin,  412 


INDEX.  1339 

YE'SVE—contmuefJ. 
in  conspiracy,  436 
in  embezzlement,  459,  473 
in  obtaining  money  by  false  pretences,  525 
in  forgery  and  ofiences  connected  therewith,  560,  595 
in  larceny,  643.  692 
proof  of,  in  libel,  710 
in  piracy,  71 

in  ortences  relating  to  post-office,  877 
in  indictment  for  receiving,  907,  919 
in  ofiences  relating  to  ships,  958 
in  prosecution  for  smuggling,  966 

VEKDICT, 

})roof  of,  170 

for  minor  oflence,  203 

how  to  be  delivered,  224 

may  be  amended,  id. 

reconsideration  of,  id. 

discharge  of  jury  without,  222 

aider  by,  234 

efitjct  of,  upon  pleadings.     See  Judgment,  Election,  Amendment. 

VESSELS.     See  Ships. 

VEXATIOUS  INDICTMENTS  ACTS,  192.    See  Statute  in  Appendix. 
applicable  in  indecent  assault,  193 
bankruptcy,  319 
conspiracy,  423 
false  pretences,  498 
libel,  193 

disorderly  houses,  821 
perjury,  836 

VIEW  BY  THE  JURY,  224 

VIVISECTION,  391.     See  Cattle. 

VOIR  DIME,  141 

VOTER=^, 

false  declarations  by,  490 
false  personation  of,  494 


WAGES,  _ 

conspiracy  to  raise,  438 

WALES, 

proof  of  marriages  in,  330 

WAREHOUSE, 

setting  fire  to,  285 
breaking  and  entering,  453 
embezzlement  of  goods  in,  461 

WARRANT, 

for  payment  of  money,  forgery  of.  544,  577 
for  delivery  of  goods,  forgery  of,  554,  583 
execution  of.    See  3Iurder.    ■ 


1340  INDEX. 

WATEK-COITRSE, 

corruptiug,  TDU 

WEIGHTS  AND  MEASURES, 
oflence  of  iisiiif;^  fiilse,  3U4 
false  i)reteuce  us  Lo.    See  Fcdse  Pretences. 

WHIPPING, 

in  ciises  of  arson,  284 

destroying  bridges,  357 
garoitiiig,  9;;i,  \)'62 
exjilnsives,  484 
larceny,  G41 
damaging  inacliinery,  717 

nianiii'actnreS;  743 

mines,  744  • 

subornation  of  perjury,  864 
poisoning  lish,  b76 
prison  breach,  889 
railway  oliences,  894 
receiving  stolen  goods,  90G 

damaging  sea  and  river  banks,  mill-dams,  etc.,  952 
damaging  ships,  9-37 
larceny  by  tenant  or  lodger,  971 
threats,  972 
damaging  trees,  shrubs,  etc.,  984 

WIDOWS, 

of  persons  killed  in  apprehending  offenders,  allowance  to,  247 

^VIFE.     See  Husband  and  Wife  and  Married  Women, 
when  incfjmpetent  as  a  witness,  125 
when  competent  witness,  120 
in  bigamy,  1 29,  328 
in  other  cases,  129 

occui>ation  of  house  by,  in  burglary,  375 
larceny  by,  G81 

larcenv  of  goods,  from  property  of,  how  described,  689 
when  liable  as  a  receiver,  910 
wlien  criminally  liable,  1010 
evidence  of  being  a  wife,  id. 

WILL,  * 

concealment  of,  422 

obtaining  property  by  means  of  forged,  558 
forgery  of,  553,  559,  572 

property  need  not  be  laid  in  any  person  in  indictment  for  stealing,  085,  993 
stealing,  injuring,  or  concealing,  992 

W^INDOWS, 

proof  of  breaking,  in  burglary,  362 

WINTER  ASSIZE,  244 

WITNESSES, 

unable  to  travel,  69 

may  be  proved  to  be  not  credible,  103 

or  not  impartial,  104 

or  may  be  contradicted  on  material  points,  id. 
contradicting  party's  own,  105 
confa-ming  party's  own,  id. 


INDEX.  1341 

^YIT:^iESSE^— continued. 

compelling  attendance  of,  107 

by  recognizance,  id. 
on  postponement  of  trial,  id. 
refusing  to  be  bound  over,  id. 
whether  they  may  be  compelled  to  find  sureties,  id. 

infants  and  married  women,  id. 
estreating  recognizances,  108 
com[)elling  attendance  by  subpoena,  id. 
by  whom  issued,  id. 
from  courts  of  limited  jurisdiction,  109 
snb|)ffina  duces  tecum  to  produce  documents,  id. 
if  producing  documents  only,  not  to  be  cross-examined,  id. 
and  need  not  be  sworn,  id. 

four  persons  may  be  included  in  one  subpoena,  id. 
must  be  served  personally,  id. 
within  what  time  to  be  served,  id, 
not  necessary  when  witness  is  present,  id. 
prisoner  may  subpoena  witnesses,  110 
compelling  attendance  by  writ  of  habeas  corpus  ad  testificandum,  id, 

by  warr.mt  from  the  secretary  of  state.  Hi 

by  warrant  from  a  judge,  id. 
neglect  to  obey  subpii?nu,  id. 
motion  for  attachment,  id. 
remuneration  of,  112 
expenses  need  not  be  tendered,  113 

except  in  certain  cmscs,  id. 
protection  of,  from  arrest,  114 
incompetency  of,  from  want  of  understanding,  115 

infants,  id. 

postponing  trial  in  order  to  instruct,  116.      See  Postponement. 

degree  of  credit  to  be  given  to  infants,  117 

deaf  and  dumb  persons,  id. 

idiots  and  lunatics,  118 
incompetency  of,  from  want  of  religion,  119 

oath  or  affirmation  necessary,  id. 

no  one  excepted  from  taking  oatli,  id. 

nature  of  religious  belief  requisite,  id. 

belief  how  ascertained,  120 

form  of  oath  to  be  administered  to,  121 

depends  on  the  religion  of  witne-s,  id. 

sufficient  for  purposes  of  perjury  if  declared  by  witness  to  be  binding,  122 

affirmation  in  lieu  of  oath,  id. 

persons  excoramunic  ited  or  under  sentence  of  death,  124. 

or  co!ivicted.  id. 
incompetency  of.  from  interest,  125 

husband  and  wife,  id. 

both  incompetent  at  common  law,  id. 

but  only  when  one  or  other  is  on  the  trial,  id. 

rule  only  extends  to  persons  lawfully  married,  126 

where  other  persons  indicted  with  them,  id. 

where  they  are  only  implicated,  127 

quaere,  whether  rule  applies  to  treason,  id. 

does  not  apply  to  cases  of  personal  violence  to  each  other,  id. 

how  far  it  applies  to  bigamy,  129 

exceptions  under  Conspiracy  Act,  id, 

other  exceptions,  id. 
incompetency  in  other  cases,  130 

grand  jurymen,  id. 

judges,  id. 

petty  jurors,  id. 

persons  indicted,  id. 

exceptions,  id. 
accomplices  always  admissible,  id.     See  Accomplice. 


1342  INDEX. 

WITNESSES— corj^/ziHcc?. 

accjiuplices  always  iidmissible — continued. 

:ili))liciitioii  to  admit  accuniplicc  inust  be  made  to  the  court,  131 

]u)\v  lio  is  to  be  taken  before  j^iaiid  jury,  id. 

wlieii  prisoner  will  be  discharged  ia  order  that  he  may  give  evidence,  id. 

vhen  competent  for  prisoner,  1'61 

promise  of  i)aidon,  id. 

corroboration  of  accomplice,  id. 
ordering  out  of  court,  13S 
witness  who  remains  not  incompetent,  id. 
on  back  of  indictment,  usual  to  call,  139 
but  j)rosecutor  not  bound  to  do  so,  id. 
nor  to  give  tlitir  places  of  residence,  id, 
in  cases  of  homicide,  id. 
judge  may  order,  to  be  called,  id. 
recalling  and  questioning  by  court,  140 
right  to  cross-examine  in  sncli  cases,  id. 
objection  to  competency  of,  when  to  be  taken,  id. 
examination  of,  in  chief,  141 
examination  of,  on  voir  dire,  id. 
contradicting  your  own  witness,  105 
cross-examination  of,  142 

when  prisoners  sei)arately  defended,  143 

as  to  i)revious  statements  in  writing,  id. 

on  depositions,  144 

as  to  credibility,  id. 

refusal  to  answer.     See  Privilege  of  Witness. 
proof  of  ]irevious  conviction  of,  l(i6.     See  Privileged  Witness. 
latitude  allowed  in  cross-examination,  144 
producing  documents  only,  not  sworn,  145 
not  cross-examined,  id. 
re-exaniin:Uion  of,  id. 
limits  within  which  confined,  id. 
I'efreshing  memory, of,  by  memoranda,  146 

wliat  memoranda  may  be  used,  id. 

informal  depositions,  id. 
examination  of,  as  to  belief,  147 
examination  of,  as  to  opinion,  id. 
skilled  persons,  id. 
medical  men,  id. 
foreign  lawyers,  148 
privilege  of,  149.     See  Privilege. 

compelled  to  answer  under  Corrupt  Practices  Act,  151 
I  Explosive  Substances  Act,  151 

bankruptcy,  62,  IGl.     See  Bankruptcy. 
act  fur  punishing  frnudident  agents,  281 
not  liable  to  prosecution,  id. 
number  requisite  in  perjury,  856 
credibility  of,  m:iking  charge  of  rape,  903 
character  of,  for  general  chastity  may  be  impeached  in  rape,  id. 

in  indecent  assault,  310 

WOINIEN,  ^ 

abduction  of.     See  Abduction. 

WOOD, 

setting  fire  to,  287,  294 

WOOLLEN  GOODS, 
embezzlement  of,  461 

WORKMEN, 

assault  bv,  in  combination,  304 

combinations  and  conspiracies  by,  in  restraint  of  trade,  438 


INDEX.  1343 


WORKS  OF  ART, 
injuring,  968 


WORSHIP,  PUBLIC.     See  Public  Worship. 

WOUNDING, 

with  intent  to  do  grevious  bodily  liarm,  301,  009 

unlawfully,  301,  989 

with  intent  to  murder,  809 

conviction  for  unlawfully,  on  indictment  for  felony,  83,  989 

conviction  for  common  assault  on  indictment  for  misdemeanor,  309 

cattle,  3^9,  390 

proof  of,  989 

proof  of  malice,  991 

indictment,  810 

WRECK, 

impeding  person  endeavoring  to  escape  from,  300 
stealing  from,  956 
injuries  to,  957 

WRIT, 

of  error,  233 
forgery  of,  555,  584 

WRITTEN  DOCUMENTS.    See  Documents. 
cross-examination  as  to  contents,  143 
evidence  of  contents  of.     See  Evidence. 

cross-examination  of  witness  producing  documents  only,  145 
of  no  value,  larceny  of,  684 
larceny  or  destruction  of,  992 
form  of  indictment  for,  id. 
stealing  wills,  id. 
efiect  of  disclosure,  993 

stealing  records  or  other  legal  documents,  id. 
no  larceny  of,  at  common  law,  id. 
what  are  within  the  statutes,  id. 
taking  with  a  fraudulent  purpose,  996 


THE  END. 


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